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FROM THE GMA NEWS NETWORK

BY RICHARD JAVAD HEYDARIAN: DUTERTE'S SOUTH CHINA SEA DILEMMA


JULY 12 - “The islands and reefs in the South China Sea are Chinese territory since ancient times,” Chinese President Xi Jinping declared in an exclusive interview during his visit to London last year. Evoking a sense of historical duty, the Chinese leader explained how the contested land features are “left to [modern China] by our ancestors,” vowing that the “Chinese people will not allow anyone to infringe on China’s sovereignty and related rights and interests in the South China Sea.”
It was a defiant justification of China’s massive reclamation activities and increasingly frequent deployment of naval vessels, para-military forces, and militia-cum-fishermen contingents across what it calls its national “blue soil”. In a span of two years, China has built a sprawling network of dual-purpose (civilian and military) facilities on artificial islands, which have been hosting a growing number of uniformed personnel and advanced military hardware like mobile artilleries, high-frequency radars, jet fighters, and surface-to-air-missile systems. Though China isn’t the first country to have engaged in reclamation activities in the area, no one matches the speed, scale and technological sophistication of its emerging “Great Wall of Sand” in the South China Sea. There is a profound fear across the region that Beijing will soon establish a de facto ‘exclusion zone’ in the area – restricting freedom of navigation and over-flight of regional states and foreign powers, particularly their armed forces. One neighboring country, in particular, has decided to take China to international court. In late 2012, shortly after China forcibly wrested control of the Philippine-claimed Scarborough Shoal, which falls well within Manila’s Exclusive Economic Zone (EEZ) but is located 900 kilometers from the nearest Chinese coastline, Philippine President Benigno Aquino decided to take the case to an arbitration body. READ MORE...

ALSO COURT ADJUDICATING PHL-CHINA ROW: What is the Permanent Court of Arbitration?


JULY 10 -The little-known Permanent Court of Arbitration on Tuesday rules on a bitter dispute over the South China Sea which could have huge international ramifications amid growing tensions in the key waterway. The Philippines brought the case against the China in 2013, asking the court to find that Beijing's claims to much of the territory in the sea are invalid and violate the UN's Convention on the Law of the Sea. Here are five facts about the tribunal based in The Hague: What is the PCA?The PCA is the world's oldest inter-governmental organisation dedicated to resolving international disputes through arbitration "and other peaceful means". It came to life in 1899 during the first Hague Peace Conference convened by Czar Nicholas II of Russia. It refers to contracts, special agreements and various treaties such as those set up by the UN Commission on International Trade Law (UNCITRAL) and the UN Convention on the Law of the Sea (UNCLOS) to rule in disputes. It also has a permanent overseas presence in Mauritius and can conduct hearings all over the world. READ MORE...

ALSO: Figuring out the Duterte admin’s energy policy


JULY 18 -By DENISE M. FONTANILLA
A Earlier this month, Energy Secretary Alfonso Cusi announced that his team was about to review the country’s energy mix, but in the same briefing also declared that the Philippines “can’t afford not to have coal.” This declaration is not only presumptuous but dangerous—for the people and the climate, and even for the image of the new administration which has taken pains to win over investors. Moreover, a national energy policy review and framework development was already launched last month, and for good reason. Cusi would especially benefit from reflecting on three major developments on the climate and energy front. The first factor is the United Nations climate agreement reached in Paris last December and signed by the Philippines last April. Its main goal is to limit global warming to 2 degrees Celsius above pre-industrial levels, but our country led the Climate Vulnerable Forum of almost 50 developing countries in successfully pushing for 1.5°C to be recognized as the aspirational target. This crucial half degree can spell the difference on whether small island nations and other high-risk countries like ours can still survive sea level rise, extreme heat, and other climate impacts. Unfortunately, a broad civil society review shows that the world is likely headed to a devastating 3°C or more based on the collective sum of countries’ climate pledges. It confirms that the commitments of all major developed countries fall far short of their fair share of efforts to reduce emissions and provide climate finance, which lends some credence to Duterte’s branding of these countries as “hypocrites” during a presidential debate. READ MORE...

ALSO DISMISSAL OF ARROYO'S PCSO PLUNDER CASE: Sereno insists ‘implied conspiracy,’ Leonen wants malversation raps


JULY 21 -SERENO, LEONEN
Author Chief Justice Maria Lourdes Sereno and Associate Justice Marvic Leonen have criticized the Supreme Court decision dismissing the plunder case against former President Gloria Macapagal-Arroyo over the alleged misuse of P366-million in intelligence funds of state lottery firm Philippine Charity Sweepstakes Office. In separate dissenting opinions, Sereno and Leonen insisted that the Sandiganbayan did not commit grave abuse of discretion when it junked Mrs. Arroyo's demurrer to evidence, a plea raised when a defendant believes the evidence against him or her is weak. In its main decision, the high tribunal, voting 11-4, granted a petition from Mrs. Arroyo seeking to dismiss the plunder case filed against her for insufficiency of evidence. Sereno and Leonen belonged to the four dissenters, along with Senior Associate Justice Antonio Carpio and Associate Justice Alfredo Benjamin Caguioa. In its ruling, the tribunal said the prosecution had failed to prove the existence of conspiracy, the amassing of ill-gotten wealth worth at least P50 million, and the raiding of public treasury and its use for the benefit of the former Philippine leader and the other respondents. Conspiracy But in her dissenting opinion, Sereno said the main decision denied "efficacy to the concept of implied conspiracy" that had been laid down in Alvizo v. Sandiganbayan. She said conspiracy was sufficiently shown through repeated approvals of Mrs. Arroyo of additional Confidential and Intelligence Funds requests in the course of three years. Sereno added that conspiracy was also shown in the irregularities in the disbursement, accounting, and liquidation of the funds and the active participation of the accused. She said there was a showing that the Office of the President, which Mrs. Arroyo controlled, was the final destination of the amounts. She also said the ruling retroactively introduced two additional elements in the prosecution of the crime of plunder: the identification of a main plunderer and personal benefit to the accused. She said these were "not contemplated in the law nor explicitly required by any jurisprudence." READ MORE...


READ FULL MEDIA REPORTS HERE:

COMMENTARY - Duterte’s South China Sea Dilemma

MANILA, JULY 25, 2016 (GMA NEWS) Published July 12, 2016 2:17pm By RICHARD JAVAD HEYDARIAN - “The islands and reefs in the South China Sea are Chinese territory since ancient times,” Chinese President Xi Jinping declared in an exclusive interview during his visit to London last year. Evoking a sense of historical duty, the Chinese leader explained how the contested land features are “left to [modern China] by our ancestors,” vowing that the “Chinese people will not allow anyone to infringe on China’s sovereignty and related rights and interests in the South China Sea.”

It was a defiant justification of China’s massive reclamation activities and increasingly frequent deployment of naval vessels, para-military forces, and militia-cum-fishermen contingents across what it calls its national “blue soil”. In a span of two years, China has built a sprawling network of dual-purpose (civilian and military) facilities on artificial islands, which have been hosting a growing number of uniformed personnel and advanced military hardware like mobile artilleries, high-frequency radars, jet fighters, and surface-to-air-missile systems.

Though China isn’t the first country to have engaged in reclamation activities in the area, no one matches the speed, scale and technological sophistication of its emerging “Great Wall of Sand” in the South China Sea. There is a profound fear across the region that Beijing will soon establish a de facto ‘exclusion zone’ in the area – restricting freedom of navigation and over-flight of regional states and foreign powers, particularly their armed forces.

One neighboring country, in particular, has decided to take China to international court. In late 2012, shortly after China forcibly wrested control of the Philippine-claimed Scarborough Shoal, which falls well within Manila’s Exclusive Economic Zone (EEZ) but is located 900 kilometers from the nearest Chinese coastline, Philippine President Benigno Aquino decided to take the case to an arbitration body.

READ MORE...

Bereft of the necessary muscle to defend its claim, and absent any tangible military support from long-time allies like America, the Aquino administration undertook the unprecedented decision to settle the South China Sea disputes under the compulsory arbitration clause (Art. 287, Annex VII) of the United Nations Convention on the Law of the Sea (UNCLOS). In coming days, the arbitral tribunal is expected to release a final verdict, most likely unfavorable to China, but it is ultimately up to the Philippines’ newly-elected President Rodrigo Duterte on how to leverage the ruling. It will be his first and arguably most important foreign policy dilemma.

The Trial

Since arbitration bodies under UNCLOS have no mandate to adjudicate questions of sovereignty (i.e., territorial claim), the Philippines skillfully repackaged its legal complaint against China as, primarily, a question of maritime entitlement zones (see Art. 121, Part VIII on “regime of islands”).

For the Philippines, it’s important to clarify, for instance, whether the disputed land features in the South China Sea constitute low-tide elevations, which (generally) can’t be claimed as one’s territory, or rocks, which can generate their own territorial sea, or islands, which can generate their own EEZ – an issue that carries immense strategic and territorial implications.

In addition, the Philippines, in its thousands-paged-long memorial, raised concerns with respect to China’s purported harassment of Filipino fishermen and energy exploration operations in its EEZ, China’s reclamation activities on low-tide elevations in the Spratly chain of islands as well as their deleterious ecological impact, particularly for coral reefs and endangered species. Most crucially, the Philippines has also questioned the validity and precise nature of China’s nine-dashed-line claim, which covers much of the South China Sea, and its doctrine of historical rights/waters, which undergirds Beijing’s claim in the area but seemingly contradicts prevailing international law.

China tried to procedurally undermine the Philippines’ arbitration case by raising both jurisdictional and admissibility questions: It cited exemption clauses under the UNCLOS (Art. 298, Section 2, Part XV); questioning the competency of the arbitral tribunal to adjudicate what China characterizes as fundamentally sovereignty-related disputes; and argued that the Philippines violated prior bilateral and multilateral agreements by resorting to compulsory arbitration, a supposedly premature maneuver since both parties are yet to fully exhaust available avenues of conciliation.

China even refused to participate in the arbitration proceedings. But the arbitration body (under Art. 9, Annex VII) proceeded with examining the Philippines’ complaint despite the absence of one party, though, in accordance to Art. 5, Annex VII, it consistently provided, in various stages, Beijing the opportunity to defend its case whether through official (i.e., counter-memorial submission) or indirect channels (e.g., public statements, position papers, etc.)

Last October, the Philippines officially overcame both the jurisdiction and admissibility hurdles when the arbitral body announced that it would push through with examining the merits of almost half of the items in the Manila’s memorial, mostly concerning matters purely of bilateral significance, particularly the nature of disputed features in the Philippines’ EEZ; the ecological impact of China’s reclamation activities in the area; and the alleged harassment of Filipino fishermen by Chinese coast guard forces.

With the respect to the remaining items, particularly the validity of China’s nine-dashed-line claims and its ‘historical rights/waters’ doctrine, the arbitral body will examine the question of jurisdiction and their individual merit simultaneously.

Options Ahead

The verdict is expected to come out on July 12. Most experts agree that the outcome will be largely unfavorable to China, which has desperately sought to undermine the legitimacy of the arbitral body, claimed to have rallied up to 40 (poor and dependent) countries to question the Philippines’ legal maneuver, and has sought to reach out to the incoming Filipino President Rodrigo Duterte, who has expressed his openness to engagement and finding a modus vivendi with China in the South China Sea.

Of course, it remains to be seen whether the Duterte administration will fully leverage the arbitration verdict or, alternatively, decide to set it aside in order to revive frayed ties with China.

A largely favorable outcome would give the Duterte administration great leverage to extract Chinese concessions—non-imposition of an ADIZ, mutual disengagement from Scarborough Shoal, non-harassment of Filipino fishermen and troops in contested waters—in the South China Sea in exchange for not releasing a strong statement on the need for ‘compliance’ and shunning using the verdict to diplomatically embarrass China.

Of course, there is also the possibility that the verdict will not be favorable to the Philippines, especially if the court issues an indeterminate, obfuscated verdict and shoots down Manila’s arguments in terms of their merits, particularly the one concerning China’s nine-dashed-line claims and doctrine of historical rights.

It is possible that the court will resort to very vague legal semantics to provide China some room to save face and not antagonize the powerful country, which has threatened to withdraw from UNCLOS altogether if it confronts a prejudicial outcome. In this case, Duterte has minimal leverage on China, but he can still open up communication channels, albeit form a weaker negotiating position, by disowning the whole arbitration proceeding as the folly of his predecessor.

There is a third, middle-way option. Both parties can, upon mutual consent, agree to the creation of a “conciliation commission” (under Article 1, Annex V of UNCLOS), which allows both parties to project their supposed respect for international law, preserve diplomatic channels, and address their overlapping claims with the guidance of a mutually-accepted panel of legal experts, who can only provide legal advice but issue no binding verdict.

Much will also depend on how America and other major naval powers will utilize the arbitration verdict to justify more regular, wide-ranging and multilateral Freedom of Navigation Operations (FONOPs) in the South China Sea, aimed at reining in Chinese assertiveness in the area.

What is at stake is not only regional security in Asia, which has been heavily undermined by the increased militarization of territorial disputes, but also shared access to global commons in accordance to modern international law. It is a clash between China’s “territorial” and “closed seas” vision of adjacent waters, on one hand, and the international community’s call for “open seas” and rule of law in international waters, on the other. —NB, GMA News

(This article by Professor Heydarian first appeared on www.brookings.edu )


COURT ADJUDICATING PHL-CHINA ROW What is the Permanent Court of Arbitration? Published July 10, 2016 9:52am By JAN HENNOP, AFP

The little-known Permanent Court of Arbitration on Tuesday rules on a bitter dispute over the South China Sea which could have huge international ramifications amid growing tensions in the key waterway.

The Philippines brought the case against the China in 2013, asking the court to find that Beijing's claims to much of the territory in the sea are invalid and violate the UN's Convention on the Law of the Sea.

Here are five facts about the tribunal based in The Hague:

What is the PCA?

The PCA is the world's oldest inter-governmental organisation dedicated to resolving international disputes through arbitration "and other peaceful means".

It came to life in 1899 during the first Hague Peace Conference convened by Czar Nicholas II of Russia. It refers to contracts, special agreements and various treaties such as those set up by the UN Commission on International Trade Law (UNCITRAL) and the UN Convention on the Law of the Sea (UNCLOS) to rule in disputes.

It also has a permanent overseas presence in Mauritius and can conduct hearings all over the world.

Interesting PCA cases

The PCA's arbitral tribunals have rendered more than 70 decisions in past cases and it currently considers 116 cases. Recently-concluded cases include rulings in a bitter border dispute between Eritrea and Ethiopia and handing down an award in favour of the Indian Ocean nation of Mauritius in a fight with Britain over a marine protected area in the Chagos Archipelago. In another case, it gave India a partial green light to build a hydro-electric project in the Kishenganga River after a dispute with Pakistan, who was worried about the project's impact on water supply further downstream.

Is it a real 'court'?

The PCA is not a court in the traditional sense with judges to rule on issues. Rather it consists of arbitral tribunals put together for each case. Hearings are not open to the public or press, unless both parties in the dispute agree.

How does it work?

When diplomacy fails between two states they may turn to arbitration via the PCA. Usually cases are settled on a pre-existing agreement -- contained in a treaty or contract -- that if a dispute arises it will be resolved through arbitration. Once arbitration begins, an arbitral tribunal is appointed, consisting of one, three or five members. For the South China Sea arbitration a five-member panel has been appointed led by Ghanian-born judge Thomas A. Mensah.

Are its decisions binding?

Yes. All decisions, called "awards" are binding on all the parties in the dispute and have to be carried out without delay.

There are some post-award proceedings available to parties unhappy with the tribunal's decision, but they are limited, particularly in inter-state disputes.

Experts also say enforcement is often the "Achilles Heel" of public international law. However, states who ignore or disregard the PCA's ruling risk losing credibility and losing out in the so-called "court of world opinion".

Source: PCA staff, PCA website, and Joris Larik, senior researcher at The Hague Institute for Global Justice. —Agence France-Presse 


OPINION: Figuring out the Duterte admin’s energy policy Published July 18, 2016 10:19pm By DENISE M. FONTANILLA


By DENISE M. FONTANILL

A Earlier this month, Energy Secretary Alfonso Cusi announced that his team was about to review the country’s energy mix, but in the same briefing also declared that the Philippines “can’t afford not to have coal.”

This declaration is not only presumptuous but dangerous—for the people and the climate, and even for the image of the new administration which has taken pains to win over investors.

Moreover, a national energy policy review and framework development was already launched last month, and for good reason. Cusi would especially benefit from reflecting on three major developments on the climate and energy front.

The first factor is the United Nations climate agreement reached in Paris last December and signed by the Philippines last April. Its main goal is to limit global warming to 2 degrees Celsius above pre-industrial levels, but our country led the Climate Vulnerable Forum of almost 50 developing countries in successfully pushing for 1.5°C to be recognized as the aspirational target. This crucial half degree can spell the difference on whether small island nations and other high-risk countries like ours can still survive sea level rise, extreme heat, and other climate impacts.

Unfortunately, a broad civil society review shows that the world is likely headed to a devastating 3°C or more based on the collective sum of countries’ climate pledges. It confirms that the commitments of all major developed countries fall far short of their fair share of efforts to reduce emissions and provide climate finance, which lends some credence to Duterte’s branding of these countries as “hypocrites” during a presidential debate.

READ MORE...

But even the Philippines has its own fair share of climate action to take on. We would not be able to meet our pledge of 70% emissions reduction by 2030, however conditional, if the government does not cancel all 29 coal plants currently in the pipeline.

Secondly, renewables have been driving the nail in the coffin of fossil fuels worldwide. A record-breaking US$286 billion was invested in RE worldwide last year, including $500 million in the Philippines, according to a UN-backed report. Renewables, particularly solar and wind, are also becoming even cheaper, especially given better storage and other newer technologies. Bloomberg’s latest report foresees some $7.8 trillion being invested in clean energy this year until 2040, and zero-emission energy sources making up 60% of installed capacity in the same year.

On the other hand, Deutsche Bank recently joined other large banks and lenders in backing off from coal. Norway’s sovereign fund, the world's largest at US$ 850 billion, denied access to AboitizPower and 51 other coal-heavy companies worldwide. The last two years also saw five major US coal companies going broke, including global giant Peabody Energy, which filed for bankruptcy last April.

Last but not the least are the improving business prospects for renewables in the country. In fact, a growing number of companies are also calling for the government to lead the way towards the clean energy transition.

Back in May, the Lopez group declared it is shelving coal and investing more into clean energy. The following month, Solar Philippines president Leandro Legarda Leviste led a group of solar developers and advocates in declaring that solar is already cheaper than coal. He also announced his plans to build the country’s first solar panel manufacturing plant.

The International Renewable Energy Agency stated that the Philippines is among the “most attractive” solar markets worldwide up to 2020, Moreover, the country has yet to explore its vast wind and hydropower resources. Ernst and Young ranked the country 22nd in its latest Renewable Energy Country Attractiveness Index.


CUSI

These three factors alone are helping build a strong case for the Philippines’ swift and just transition to clean energy.

Fortunately, two of Cusi’s fellow cabinet members are more upbeat on renewables.

The day after Cusi defended coal, socioeconomic planning secretary Ernesto Pernia told reporters about his proposed Metro Manila solar program. Pernia said Cusi himself is open to the plan and emphasized that renewables are faster to build compared to coal plants.

You also have environment secretary Gina Lopez, a staunch anti-coal advocate who said in a recent interview that she will prioritize approving permits for renewable energy projects over those of coal and other fossil fuels.

Even President Rodrigo Duterte himself told the Green Thumb Coalition of civil society groups last April that he "agrees with the eventual phase-out of coal power plants and other plants that use harmful fuels and steer the country for more investments in [renewables]."

As he and his cabinet buckle up for the energy policy review, they should recognize that the Philippines can no longer afford to rely on coal and other forms of dirty and harmful energy.

They should also keep in mind that the previous administration promoted coal and only managed to launch the review two weeks before they took over the reins. The president was elected to be the change instead of the copycat; switching to clean energy is one big way his administration can prove it.

Denise M. Fontanilla is the energy policy advocacy consultant of the Institute for Climate and Sustainable Cities, a policy group promoting low-carbon development initiatives in vulnerable countries.


DISMISSAL OF ARROYO'S PCSO PLUNDER CASE Sereno insists ‘implied conspiracy,’ Leonen wants malversation raps Published July 21, 2016 6:19pm Updated July 21, 2016 9:44pm By MARK MERUEÑAS, GMA News


SERENO, LEONEN

Author Chief Justice Maria Lourdes Sereno and Associate Justice Marvic Leonen have criticized the Supreme Court decision dismissing the plunder case against former President Gloria Macapagal-Arroyo over the alleged misuse of P366-million in intelligence funds of state lottery firm Philippine Charity Sweepstakes Office.

In separate dissenting opinions, Sereno and Leonen insisted that the Sandiganbayan did not commit grave abuse of discretion when it junked Mrs. Arroyo's demurrer to evidence, a plea raised when a defendant believes the evidence against him or her is weak.

In its main decision, the high tribunal, voting 11-4, granted a petition from Mrs. Arroyo seeking to dismiss the plunder case filed against her for insufficiency of evidence.

Sereno and Leonen belonged to the four dissenters, along with Senior Associate Justice Antonio Carpio and Associate Justice Alfredo Benjamin Caguioa.

In its ruling, the tribunal said the prosecution had failed to prove the existence of conspiracy, the amassing of ill-gotten wealth worth at least P50 million, and the raiding of public treasury and its use for the benefit of the former Philippine leader and the other respondents.

Conspiracy

But in her dissenting opinion, Sereno said the main decision denied "efficacy to the concept of implied conspiracy" that had been laid down in Alvizo v. Sandiganbayan.

She said conspiracy was sufficiently shown through repeated approvals of Mrs. Arroyo of additional Confidential and Intelligence Funds requests in the course of three years.

Sereno added that conspiracy was also shown in the irregularities in the disbursement, accounting, and liquidation of the funds and the active participation of the accused.

She said there was a showing that the Office of the President, which Mrs. Arroyo controlled, was the final destination of the amounts.

She also said the ruling retroactively introduced two additional elements in the prosecution of the crime of plunder: the identification of a main plunderer and personal benefit to the accused. She said these were "not contemplated in the law nor explicitly required by any jurisprudence."

READ MORE...

"The ponencia has grossly erred in characterizing the prosecution's evidence as not showing 'even the remotest possibility that the CIF of the PCSO had been diverted to [the accused],'" said Sereno, stressing that PCSO budget and accounts manager Benigno Aguas himself had admitted P244 million of nearly P366 million PCSO funds had been diverted to the Office of the President.

Sereno noted that the decision had created a precedent by completely ignoring the evidentiary effect of formal reports to the Commission on Audit that had been admitted by the trial court.

Sereno said the prosecution was correct when it claimed that Mrs. Arroyo knew that co-accused former PCSO General Manager Rosario Uriarte would raid the treasury and misuse the PCSO funds, considering the control that the then-president had over the PCSO.

Sereno accused the majority of "missing the point" and "deliberately choosing to reject the prosecution's claim" by stating that the doctrine of command responsibility does not apply in Mrs. Arroyo's case because it did not involve her functions as commander-in-chief of the Armed Forces of the Philippines.

'Premature'

In his own dissenting opinion, Leonen, meanwhile, said it was still "premature" to dismiss and acquit Mrs. Arroyo.

Leonen said trial should still proceed because the prosecution still adduced sufficient evidence to convict Mrs. Arroyo and the other accused with malversation of public funds, as penalized under Article 217 of the Revised Penal Code.

"The Sandiganbayan's resolution to the demurrers to evidence includes the finding that the PCSO Chairperson [Sergio] Valencia, should still be made to answer for malversation as included in the information in these cases," said Leonen.

"Since the information charges conspiracy, both petitioners in these consolidated cases still need to answer for those charges," he added.

Highly intelligent

Leonen described Arroyo as a "highly intelligent President who knew what she was doing."

He said the former president was aware that only she had the power to increase the allocation and disbursement of the CIF, and that she would not have approved any request for increase if it was not properly supported by adequate funds.

"The approvals were in increasing amounts and each one violating established financial controlals. The former President cannot plead naivete. She was intelligent and experiened," Leonen said in the final statements of his opinion. — RSJ/KBK, GMA News


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