San Beda College AlabangSchool of Law

Public International Law Paper

BELARMINO, Anna Katrina A. December 10, 20142013400069 Atty. Eliza Yamamoto

SPRATLYS DISPUTE

Spratly Islands are one of the three archipelagos in the South China Sea. The archipelago lies off the coasts of the Philippines, Malaysia and Southern Vietnam. According to mariners, the seas around the Spratlys are known as dangerous ground as it was characterized to have low islands, sunken reefs which often rise abruptly from ocean depths. Spratlys Island is one which has various territorial claims. The island has about 45 islands which contains structures occupied by military forces from the People’s Republic of China, Taiwan, Vietnam, Philippines and Malaysia. Brunei also claimed an exclusive economic zone but they are not occupying a part of Spratlys.

Various nations claim that Spratlys Island belong to their territory. Vietnam, as part of Khanh Hoa Province; Taiwan, as part of Kaohsiung municipality; Philippines, as part of Palawan province; Malaysia, as part of Sabah state; Brunei, as part of Brunei’s exclusive economic zone and China, as part of Hainan province.

In 2002, China and the members of the Association of Southeast Asian Nations signed the Declaration on the Conduct of Parties in the South China Sea that aimed “to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned” (ASEAN 2002). This has created a tense stalemate that can change at any time. Tensions increased when the Sulu Sultanate from the Philippines attacked North Borneo in early March 2013. North Borneo is part of Sabah, a member state of Malaysia that has claimed the Spratly Islands. 1

On 2011, the President of the Philippines warned visiting Chinese Defense Minister Liang Guanglie of a possible arms race in the region if tensions worsened over dispute in the South China Sea.

Spratlys Island is reported to be potentially an oil rich archipelago also important for economic and strategic reasons. It is one of the busiest areas of commercial shipping traffic and is surrounded by countries who may get extended continental shelf if their claims were recognized. The attention was increased this year, 2014, when China planned to further 1 Haw, J. The Philippines and Spratly Islands: A Losing Battle http://blogs.scientificamerican.com/expeditions/2013/06/04/the-philippines-and-spratly-islands-a-losing-battle/

develop its military presence in the area. The Philippines then claims part of the area as its territory under UNCLOS, an agreement parts of which have been ratified by the countries involved in the Spratlys Islands dispute.

However, the Philippines, despite its success and experience in maintaining marine ecosystems within the Philippine exclusive economic zone (EEZ). The country will still need the support of United States in its claim over the Spratlys Island and this can benefit US from the resources from the rich ecosystem and location of the islands. Unfortunately, United States refused to take sides on the matter.

On December 7, China says that the Philippines violated and abused international law by filing a legal case it rejected on technical grounds. China said that The Hague-based international arbitral tribunal lacks jurisdiction or the power to decide the case.2 The Philippines has yet to respond on the position paper that China released.

The Philippines based its claim on the principle of res nullius or terra nullius and geography. Terra nullius refers to the territory which prior to occupation belonged to no state or which may have been abandoned by a prior occupant. There is abandonment when the occupant leaves the territory with the intention of not returning. The Permanent Court of Justice stated that it may be well to state that a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: one is the intention and will to act as sovereign and two, some actual exercise or display of such authority. Based on the current situation in Spratlys, it’s hard to decide on who has the superior authority over the land. The countries fighting over its jurisdiction has their own different share of actual exercise and business in the island. It is confusing on how they will decide its ownership.

KILLING OF OSAMA BIN LADEN

2 Macaraig, A. Rappler. China: PH legal case weak on jurisdiction. http://www.rappler.com/nation/77288-china-ph-legal-case-weak-jurisdiction

Osama bin Laden was the founder of al-Queda, the militant organization that claimed responsibility for the 9-11 attacks on the United States which resulted to a mass-casualty attacks against civilian and military targets. He joined mujahideen forces in Pakistan to fight against the Soviet Union in Afganistan where he helped to fund by funneling arms, money and fighters from the Arab world into Afganistan and gained popularity from many Arabs. It was in 1988 when he decided to make a complex which he named as Al-Qa'edah which is an Arabic word meaning "the base".3

He established a new base in Afganistan and declared a war against the United States. He was listed as one of the Ten Most Wanted Fugitives and Most Wanted Terrorists. In 2004, Osama bin Laden claimed responsibility for the September 11, 2001 attacks.

"God knows it did not cross our minds to attack the Towers, but after the situation became unbearable—and we witnessed the injustice and tyranny of the American-Israeli alliance against our people in Palestine and Lebanon—I thought about it. And the events that affected me directly were that of 1982 and the events that followed—when America allowed the Israelis to invade Lebanon, helped by the U.S. Sixth Fleet. As I watched the destroyed towers in Lebanon, it occurred to me punish the unjust the same way: to destroy towers in America so it could taste some of what we are tasting and to stop killing our children and women ." — Osama bin Laden, 2004

After the 9-11 attacks, Osama bin Laden's was nowhere to be seen and avoided all public contact. No one knew where he was and it was reported that somewhere he's been hiding or he has been killed. Then President George W. Bush stated that he want justice to be served and spread out a poster that said 'wanted dead or alive'. In 2010, there were a lot of reports that bin Laden was hiding out in the mountainous town in Iran and that he was living comfortably in Pakistan protected by elements of the country's intelligence services which was denied by a senior Pakistani official. In 2011, a leaked Al Jazeera report claimed that bin Laden had been capture by US forces in Afganistan. The operation, code-named Operation Neptune Spear was ordered by US President Barack Obama. They raided bin Laden's compound and took his body to Afganistan for identification then buried it at sea within 24 hours after his death. Bin Laden's killing was favorably received by US public opinion as well as the United Nations and a large number of governments.

Under International Law, Pakistan's Prime Minister Yousaf Raza Gillani said that their people were rightly incensed on the issue of violation of sovereignty as typified by the covert US air and ground assault on the Osama hideout in Abbottabad. The Security Council, while exhorting UN member states to join their efforts against terrorism has repeatedly emphasize that this be in accordance with international law, human rights and humanitarian law.4 US Senate Judiciary Committee, Attorney General Eric Holder said that 3 Biography of Osama bin Laden. Frontline. http://www.pbs.org/wgbh/pages/frontline/shows/binladen/who/bio.html4 Yousaf Raza Gilani (May 9, 2011). "Pakistan PM's speech on Osama bin Laden situation". International Business Times. http://www.ibtimes.com/pakistan-pms-speech-osama-bin-laden-situation-full-text-282921

the operation against Bin Laden was justified as an act of national defense and that it is lawful to target an enemy commander in the filled. At the same time, UN Security Council released a statement that they were very much relieved on the news of bin Laden's death. According to Walter E. Dellinger, solicitor general under former U.S. President Bill Clinton, shooting bin Laden is legal because it was not an assassination of a political leader but the killing of a military commander at best as part of an operation i.e. in a military combat. And, in a military combat, an enemy can be lawfully killed even if he is unarmed. 5

There were questions if the military operation in Pakistan, a foreign soil constituted a violation of sovereignty. US was justified because Pakistan was unwilling or unable to stop the threat posed by bin Laden and that Pakistan's consent was not necessary because of past concerns about the close ties between Pakistan intelligence and the Taliban.

The death of Osama bin Laden was not accepted by everyone, many people thought that it was shady and different conspiracy theories were shown on television and online because there was no released pictures of the dead body. On November 7, 2014, former Navy SEAL Robert O'Neill said in an interview with the Washington Post that he was the one who fired the final shot to kill Osama bin Laden in 2011.6

5 Is Osama bin Laden killing legal? International Law experts divided. International Business

Times. http://www.ibtimes.com/osama-bin-laden-killing-legal-international-law-experts-divided-2827396 Death of Osama bin Laden Fast Facts. CNN Library. http://edition.cnn.com/2013/09/09/world/death-of-osama-bin-laden-fast-facts/