The Chinese view on the Philippine arbitration on the West Philippine Sea


Judge Xue

Judge Xue

Participants to the recently concluded 4th biennial Conference of the Asian Society of International Law in New Delhi, India last November 15, 2017 heard for the first time the Chinese position on the Philippine arbitral claim on the West Philippines Sea dispute.

In the said conference, I delivered a paper entitled “What next after the Chinese Snub? Examining the UNCLOS dispute settlement procedure: Philippines vs. China”. My paper argued that the issues that the Philippines brought to the arbitral claims, to wit, the validity of China’s nine-dash lines, whether certain low-tide elevations where China has built installations pertain to the Philippines as part of its continental shelf; and whether the waters surrounding the territorial sea of Panatag form part of the Philippines EEZ are issues of interpretation of specific provisions of the UNCLOS and hence, were within the compulsory and binding dispute settlement procedure of the UNCLOS.

Further, while I acknowledged that China’s reservations on maritime delimitation and law enforcement activities in the exercise of sovereign rights were more challenging obstacles to hurdle, they were not insurmountable because the language of the Philippine claim does not call for a ruling involving any of the reservations made by China.

My paper assumed that the Tribunal’s jurisdiction over China as party to the proceedings was well settled. This is because China, as a party to the UNCLOS, has accepted the dispute settlement procedure of the Convention, together with all the provisions of the Convention which were all adopted on the basis of consensus.

The Chinese Judge to the International Court of Justice, Judge Xue Hanqin, was present in the conference. Judge Xue is the highest woman official in China prior to her election to the Court. Previously, she served as chief legal adviser and head of the treaties office of the Chinese Foreign Ministry and Ambassador to the Netherlands and Asean. She is said to have been groomed to be part of the Central Bureau of China’s People’s Party had she not opted to join the ICJ. While Judge Xue and I have been good friends, having served together in the Executive Council of the Asian Society of International Law for the past 6 years, I knew it would still be awkward to have her listening to my presentation.

But the most unusual thing happened after my 25-minute presentation. Judge Xue, explaining that since she was the only Chinese present in the conference because the Chinese delegates were denied visas by Indian authorities, took the floor for the next 20 minutes and for the first time expounded extensively on the Chinese position on the Philippine arbitral claim. This was unusual because magistrates, be it from domestic or international courts, will normally refuse to comment on an actual dispute, which could come to their court for adjudication. This certainly applies to the West Philippines Sea dispute.

Judge Xue raised four crucial points. Her first was that the Philippine claim involved territorial claims which is outside the purview of UNCLOS. She added though that “since the end of World War II, the international community, has acknowledged the existence of China’s nine-dash lines with no country ever questioning it until oil resources were discovered in the area.” Without expounding on the nature of the lines, she claimed that it is “not considered as a boundary line” and they “have not affected international navigation in the area.” She claimed that there was “”no international law applied in this regard to the region.”

Second, Judge Xue argued that 40 countries, including China, made declarations to the dispute settlement procedure of the UNCLOS. According to her, this means “these 40 states have not accepted the dispute settlement of the Convention as being compulsory”. She said that “when countries joined UNCLOS I, they are not deemed to have given up all their previous territorial claims.”

Third, she said that as China’s first Ambassador to Asean, she knows that the countries of Asean and China have agreed to a code of conduct relating to the South China Sea. Under this code, disputes must be resolved through negotiations and not through arbitration. She claimed that this obligation was “a substantive obligation binding on all claimant state.”

Fourth, Judge Xue explained that China opted out of the arbitration because “no country can fail to see the design” of the Philippine claim which she described as having “mixed up jurisdiction with the merits.”

She opined that the Philippines’ resort to arbitration complicated what she described as an “impressive process between Asean and China”. What the Philippine did “was to begin with the “complicated part of the South China Sea dispute” rather then with easier ones such as “disaster management.” This later pronouncement all but confirmed that the very limited humanitarian assistance extended to the Philippines by China in the aftermath of Yolanda was because of the Philippine resort to arbitration.

Judge Xue ended her intervention by exhorting the Philippines to consider joint use of the disputed waters, a matter that according to her has been successfully resorted to by China and Vietnam.

While Judge Xue’s intervention made our panel, without a doubt, the most memorable exchange in the conference, her declarations provided us with many answers that China has refused to give us.

We have Judge Xue to thank for this.

Judge Xue asked that I post this disclaimer: “Judge Xue Hanqin wishes to reiterate that she participated in the 4th Biennial Conference of the Asian Society of International Law held in New Delhi from 14-16 November 2013 in her personal capacity as a member of the said Society and her remarks in response to Professor Harry Roques presentation at the panel discussion on the South China Sea are solely of her own and do not represent in any way the official position ofChina on the issue. She also wishes to point out that her remarks are not fully and accurately reflected in Blog articles.”

The Judges of the Nine-Dash lines


The arbitration initiated by the Philippines against China impugning
the validity of China’s nine-dash lines appear to be on track. Last
week, pursuant to the UN Convention on the Law of the Sea, the
Japanese President of the international tribunal on the Law of the Sea
(ITLOS) completed the five man tribunal that will rule on the
Philippines arbitral claims. Initially, the Philippines appointed its
nominee to the panel, the German Judge at the ITLOS, Professor Rudiger
Wolfrum. Later, the ITLOS president appointed a polish academic to be
act as China’s arbitrator to the panel, Mr. Stanislaw Pawlak. Last
week, the three remaining arbitrators were appointed: Mr. Jean-Pierre
Cot of France, Mr. Chris Pinto of Sri Lanka, and Mr. Alfred Soons of
the Netherlands.

A jurist once remarked that “the law is what the Judges say it is”.
This means that while the Philippines has claimed thattChina’s
nine-dash lines is contrary to the UNCLOS, the 5 man tribunal will be
the sole judge of whether this is in fact the case. Before they can
decide the issue on the merits, they have first to rule whether the
Philippines submissions are covered by the compulsory and binding
dispute procedure under UNCLOS; that is, that it involves issues
relating to “application and interpretation” of the Convention; and
that the issues are not covered by any of China’s reservations, to
wit: disputes involving maritime delimitation; military activities,
including military activities by government vessels and aircraft
engaged in noncommercial service; and disputes concerning law
enforcement activities in regard to the exercise of sovereign rights
or jurisdiction.

Since this five man tribunal will rule on whether China can treat the
South China Sea as its lake,a lot hinges on who these appointed
arbitrators are, Fortunately, in an effort perhaps to convince China
that the Tribunal will arrive at the correct decision, the ITLOS
President, despite the pending maritime disputes existing between his
own state of Japan and China, appointed perhaps the most qualified
arbitrators to rule on the issues of both jurisdiction and the merits.

Here is a short summary of who these arbitrators are:

Mr. Chris Pinto- member of the Sri Lanka bar and Barrister at the
Inner temple, London. Graduate of University of Sri Lanka
(Peradeniya), LL.B; and University of Cambridge: LL.M (International
Law). Honorary Ll. D from University of Colombo (Sri Lanka). Former
.Legal Officer, International Atomic Energy Agency, Vienna.
(1960-1963); Attorney, World Bank, Washington, D.C. (1963-1967)The
Legal Adviser, Ministry of Foreign Affairs, Sri Lanka.
(1967-1977)Member, Sri Lanka Delegation to the U.N. Conference on the
Law of Treaties, Vienna. (1968-1969)Ambassador of Sri Lanka to Germany
and Austria. (1977-1982)Member and Chairman, U.N. International Law
Commission, Geneva.(1973-1982) ;Member (later Chairman), Sri Lankan
Delegation, Third U.N. Conference on the Law of the Sea. (1973-1982)
Secretary-General, Iran-United States Claims Tribunal, The Hague.
(1982 to present) Secretary-General, Iran-United States Claims
Tribunal.
Member (Sri Lanka), Permanent Court of Arbitration, The
Hague.Alternate Member (Sri Lanka), International Court of Arbitration
of the International Chamber of Commerce, Paris.Sole arbitrator in
dispute between Singapore firm and Sri Lanka State Timber Corporation
(Permanent Court of Arbitration);President of Five Member Tribunal in
marine environmental dispute Between Malaysia and Singapore. (Under
Annex VII of the UNCLOS). Source: Source:

http://www.sccietac.org/custom/sccietac/arbiterDetail.jsp?id=1921

Judge Jean-Pierre Cot

Member of the Tribunal (ITLOS) since 1 October 2002; re-elected as
from 1 October 2011; President of the Chamber for Marine Environment
Disputes 2008-2011. Licence en droit, Docteur en droit public, Paris
Law Faculty (1955–1965); Agrégé des facultés de droit et des sciences
économiques (1966). Professor of public and international law and
Dean, University of Amiens (1966–1969); Professor of public and
international law, University of Paris-I (Panthéon-Sorbonne)
(1969–1998); Emeritus Professor, University of Paris-I (1999–present);
Associate Research Fellow, Université Libre de Bruxelles
(1999–present); Counsel and Advocate in a number of cases before the
International Court of Justice: Frontier Dispute (Burkina
Faso/Republic of Mali), Territorial Dispute (Libyan Arab
Jamahiriya/Chad), Kasikili/Sedudu Islands (Botswana/Namibia), Armed
activities on the territory of the Congo (Democratic Republic of the
Congo v. Burundi), Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria), Sovereignty over Pulau Litigan and
Pulau Sipadan (Indonesia/Malaysia); Member of an arbitral tribunal of
the International Chamber of Commerce; Counsel and advocate, arbitral
tribunal, France/UNESCO; President of an arbitral tribunal established
within the framework of the European Development Fund; Judge ad hoc,
International Court of Justice, Maritime Delimitation in the Black Sea
(Romania v. Ukraine),Aerial Herbicide Spraying (Ecuador v. Colombia),
Territorial and Maritime Dispute (Nicaragua v. Colombia) and Temple of
Preah Vihear, Interpretation (Cambodia v. Thailand).

.

Source: http://www.itlos.org/index.php?id=83

MR.ALFRED H.A.SOONS, Studied law at Utrecht University, The
Netherlands, followed by postgraduate studies in international law at
the University of Washington (Seattle, USA) and Cambridge University
(UK). He obtained a PhD-degree at Utrecht University in 1982.
Professor of public international law and director of the Netherlands
Institute for the Law of the Sea (NILOS) at Utrecht University in
1987. Acted as counsel and arbitrator he has been involved in
international litigation at the International Court of Justice and
arbitral tribunals.

Source: http://untreaty.un.org/cod/avl/pdf/ls/Soons_bio.pdf

Judge Stanislaw Pawlak

Member of the Tribunal since 1 October 2005. Born: Kalisz, Poland, 27
September 1933; Education: Master of Law, University of Warsaw (1955);
Doctor of Law, University of Warsaw (1967); Doctor habilitated of
Political Science, University of Warsaw (1973). Professional
Experience: Legal Adviser and Analytic Officer, Polish delegation to
the Neutral Nations Supervisory Commission in Panmunjon, Korea
(1956–1958); Attaché and Second Secretary, Polish Embassy, Tokyo
(1958–1963); Senior Counsellor, Ministry of Foreign Affairs
(1963–1965, 1970–1972); Deputy Chief, Polish delegation to the
International Control Commission, Saigon, Viet Nam (1965–1966); First
Secretary, Polish Embassy to the United States of America (1967–1970);
Deputy Director, Foreign Minister’s Office (1973–1975); Polish
Representative to the UN General Assembly (1973–1978, 1983–1990,
2002–2005); Associate Professor of International Relations and
International Law, Faculty of Journalism and Political Science,
University of Warsaw (1974–2001); Director, Department of
International Organizations, Ministry of Foreign Affairs (1975–1978);
Ambassador, Canada (1978–1983); Director, Legal and Treaty Department,
Ministry of Foreign Affairs (1983–1986); Head of Polish delegation,
talks with the GDR delegation on the Agreement of 22 May 1989 on
delimitation of the maritime boundary with the GDR (1983–1988); Head
of Polish delegation, talks with the USSR delegation on the
delimitation of the Polish-Soviet sea border (1985); Chairman, Polish
delegation to the Vienna diplomatic conference which drew up the draft
Convention on the law of treaties between States and international
organizations and between international organizations (1986);
Director, International Organizations Department, Ministry of Foreign
Affairs (1986–1989); Ambassador and Permanent Representative of
Poland, UN, New York (1989–1991); Visiting Professor, various
universities in the United States and Syria (1990–2001); Chairman,
group of Polish experts, talks with the delegation of experts of the
Russian Federation and delegations of experts of other interested
States on protection and conservation of marine resources of the Sea
of Okhotsk (1992–1995); Delegate of Poland to the Steering Committee
for Human Rights (CDDH), Council of Europe (1992–1995);
Deputy-Director, Legal and Treaty Department, Ministry of Foreign
Affairs (1992–1996); Chairman, Polish Delegation to the International
Conference which drew up the 1994 Convention on Protection of
Fisheries in the Bering Sea (1993–1994); Chairman, Polish Delegation
to the UN Conference for the Agreement on Straddling Fish Stocks and
Highly Migratory Stocks (1993–1995); Ambassador, Syrian Arab Republic
and Hashemite Kingdom of Jordan (1996–2001); Adviser to the President
of the Republic of Poland (2001–2005); Titular Ambassador
(2002–present); Professor of International Relations and Public
International Law, Faculty of Journalism and Political Science,
University of Warsaw (2002–2011); Professor Emeritus, University of
Warsaw; President, thirteenth Meeting of States Parties to the
Convention (2003); Chairman, Polish delegations to the thirteenth and
fourteenth Meetings of States Parties to the Convention (2003–2004);
nominated to the List of Arbitrators under article 2 of annexes V and
VII to the Convention (2004); Professor and Dean, Faculty of Social
Science and Administration, Warsaw Academy of Computer Science and
Administration (2005–present).

Source: http://www.itlos.org/index.php?id=86

Judge Rüdiger Wolfrum

Member of the Tribunal since 1 October 1996; re-elected as from 1
October 1999 and 1 October 2008; Vice-President of the Tribunal
1996-1999; President of the Chamber for Marine Environment Disputes
1997-1999; President of the Tribunal 2005-2008; Member of the Special
Chamber formed to deal with the Case concerning the Conservation and
Sustainable Exploitation of Swordfish Stocks in the South-Eastern
Pacific Ocean 2000-2009

Education: First State Examination (1969); Second State Examination
(1973); Dr. jur., University of Bonn (1973); Habilitation, venia
legendi for National Public and International Public Law (1980).

Professional Experience: Assistant Professor, Institute of
International Law, University of Bonn (1973–1982); Research fellow,
Center for Oceans Law and Policy, University of Virginia (1977–1978);
Professor of National Public and International Public Law, University
of Mainz (1982); Professor, Chair of National Public and International
Public Law and Director, Institute of International Law, University of
Kiel (1982–1993); Vice-Rector, University of Kiel (1990–1993); Judge
at the Courts of Appeal for Administrative Matters, Lüneburg and
Schleswig (1986–1993); Director, Max Planck Institute for Comparative
Public Law and International Law, Heidelberg (1993–present);
Professor, Faculty of Law, University of Heidelberg (1993–present);
Vice-President, German Research Foundation (1996–2002); Honorary
Professor, Faculty of Law, University of Hamburg (2002–present);
Vice-President, Max Planck Society for the Advancement of Science
(2002–2005); Honorary Professor, Faculty of Law, University of
Pretoria; Member, Board of the Max Planck Foundation on International
Peace and Rule of Law (2012).

German delegation to: Third UN Conference on the Law of the Sea
(1980–1982), Preparatory Commission for the International Seabed
Authority and for the International Tribunal for the Law of the Sea
(1982), 4th Special Consultative Meeting concerning Antarctic mineral
resource activities (1983–1988); Chairman of the Legal Working Group
of the Antarctic Treaty Consultative Meetings preparing an Annex to
the Protocol on Environmental Protection to the Antarctic Treaty on
responsibility for environmental damage (1993–1998); UN Committee on
the Elimination of Racial Discrimination (1990–2000, re-elected 1994
and 1998); Founding Member of the Humanities Section of the German
Academy of Natural Sciences (Leopoldina) (2003); Board of Trustees of
the University of Hamburg (2003–present); Chairman, Board of
theDeutsche Gesellschaft für Völkerrecht (German Society for
International Law) (2005–2009); Institut de droit international
(2007–present).

Source: http://www.itlos.org/index.php?id=80

China advised not to snub arbitration


Opinio Juris

First Signs that China Is Taking the Philippines Arbitration Seriously?
Posted: 15 Feb 2013 10:35 PM PST
by Julian Ku

As far as I can tell, the Chinese government continues to pretend as if the Philippines’ Law of the Sea arbitration claim doesn’t exist. Articles like this one suggest the Philippines government continues to wait for some official or unofficial Chinese response. The February 22 deadline for China to appoint an arbitrator is fast approaching.

There are obviously bigger things going on in the world, and in East Asia (the North Korea nuclear tests come to mind). But it is worth noting that I ran across, for the first time, an article in the Chinese press discussing the arbitration with sophistication and a very good understanding of the Annex VII process. Published in the journal “瞭望新闻周刊“ or “Outlook Newsweekly”, the article describes the views of an unnamed expert advising the Chinese government not to take the Filipino arbitration claim lightly.

The expert offers a few considerations for the Chinese government. Among other things, the expert notes that the Philippines is using this arbitration to gain support and sympathy from its neighbors (Vietnam is supporting) and its allies (US Secretary of State Kerry and the EU Parliament head support it). The claim also hypes suspicions of China at the United Nations and elsewhere.

More interestingly, the expert further notes that if China does nothing, the arbitration will still continue with the Japanese ITLOS president appointing the rest of the members. (Maybe the expert was reading Opinio Juris!). In any event, the expert advises the Chinese government to appoint an arbitrator and work hard to convince to arbitration tribunal to dismiss for lack of jurisdiction. Moreover, China can at any time during the arbitration work out a settlement agreement with the Philippines. (There is more to the article, but this is the key advice).

So is this is a sign of where the Chinese government is going? It seems unlikely that the musings of an unnamed expert will be very important, but who knows? At the very least, it seems as if there is some thinking on this issue going on in China. The 30 day clock continues to tick. Only six days left!

Seabed a hotbed of controversy for Philippines, China Thomas Maresca, Special for USA TODAY4:34a.m. EST January 22, 2013


China has been dispatching ships and aircraft to enforce its ownership of the South China Sea, infuriating Asian nations whose coastlines also approach the sea.

MASINLOC, Philippines — Romeo Taneo, 39, has been going to Scarborough Shoal for as long as he can remember.

The rich schools of fish such as tuna found along the chain of reefs and rocks 124 miles from shore have been fished by the people of this Philippine town for centuries. But the 2,000 fishermen of Masinloc haven’t gone there in months, not since Chinese vessels arrived to claim the shoal for China even though its coastline is 500 miles away.

“We can’t fish there anymore,” Taneo said. “Whenever we go near, the Chinese chase us away.”

China has essentially said it wants to chase every nation from the South China Sea. It has laid claim to 1 million square miles of the sea and in recent months has been dispatching ships and aircraft to enforce its ownership, infuriating Asian nations whose coastlines also approach the sea.

It’s not just for the rich sources of fish that China and others are battling. The World Bank has estimated that the seabed contains huge deposits of oil and natural gas. The sea is a major route for the world’s cargo (50% of global oil tankers pass through it). As Asia’s economies and populations grow, the food source and the energy resources of the South China Sea will become even more important.

Confrontations that have already taken place between China and its neighbors over the sea could escalate and lead to war,observers of the situation say.

“The situation is quite worrying and we’re watching it closely,” said Stephanie Kleine-Ahlbrandt, China and Northeast Asia project director for the International Crisis Group. “The continuing presence of claimants’ law enforcement and fishing vessels in disputed waters are opportunities for skirmishes that may bring countries down a path they didn’t intend.”

The shoal, a triangle of rocks about 35 miles around, is one of a number of outcroppings and islands in the South China Sea that the People’s Republic of China says the Chinese discovered and claimed long ago. Scarborough is named for a British tea ship wrecked on its rocks in 1784 with no survivors.

In July, China proclaimed the creation of a Sansha, a new city on tiny Yongxing Island that would oversee jurisdiction of the Paracel, Spratly and Macclesfield Bank island groups scattered throughout the sea. In November, China issued passports with a map of China that included about 80% of the South China Sea.

Today it continues to protect Chinese fishing boats that ply shoal waters, even though the shoal is well within the Philippines’ a 200-mile zone that all coastal nations can claim as exclusively theirs according to the United Nations Convention on the Law of the Sea.

Vietnam, Malaysia, Brunei, Taiwan and the Philippines have claims to parts of the sea, and some have complained to the United Nations and the USA for help in dealing with China’s ownership announcement.

Tensions were high in April when the Philippines tried to act against China. Chinese vessels prevented a Philippine naval warship from pushing out Chinese fishing boats accused of poaching protected species such as sea turtles. Eventually both fleets agreed to go home, but Chinese marine surveillance vessels soon returned and remain. The vessels went as far as to rope off the entrance to Scarborough lagoon.

Caught in the geopolitical standoff are fishermen up and down Zambales, a province on the west coast of Luzon, the largest island in the Philippines.

“We’re afraid to go to Scarborough now,” said Francis Alaras, who has been fishing for 15 years out of Subic Bay. “Even the Coast Guard is afraid to go there.”

Taneo said he used to take in $250 to $500 in a good week catching grouper, Spanish mackerel and tropical aquarium fish around Scarborough. Now he might earn $50 in waters nearer the coast. Some fishermen journey several extra hours to avoid the Chinese-occupied area, burning additional fuel and squeezing their ability to make a profit.

What puzzles many in Masinloc is the suddenness of the change. Taneo said fishermen from several countries used to fish at Scarborough without incident, at times even boarding each other’s vessels to swap local delicacies and liquor.

“Why now?” he said.

Harry Roque Jr., a professor of law at the University of the Philippines, urged Manila to bring the Scarborough case before the U.N.’s International Tribunal for the Law of the Sea, which could issue a binding provisional decision. China and the Philippines are both signatories to the treaty.

“It would be the perfect way to defuse the tension if there is in fact a provisional measure,” Roque said. “Of course there’s no guarantee China will comply with it, but I think it’s very clear that in modern history no state wants to be branded a violator of international law.”

Philippine Foreign Affairs Secretary Albert del Rosario has also called for international arbitration in the Scarborough standoff.

“While we are at a disadvantage in terms of our resources and capabilities, it is our belief that international law is the great equalizer and that right is might,” he said.

On Tuesday, the Philippine foreign secretary said that he has summoned China’s ambassador in the Philippines to inform her that Manila is seeking arbitration at an international tribunal. Del Rosario said the Philippines has exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of maritime disputes with China, and hopes that the arbitral proceedings will bring results.

China, however, has said it would not accept an international judgment and will only resolve the matter in one-on-one talks with individual countries, which its smaller neighbor the Philippines says puts it at a severe disadvantage.

The conflict has gotten the Philippines to turn for help to a former hated enemy, Japan, whose occupation of the Philippines during World War II is not forgotten here. Last week Japanese Foreign Minister Fumio Kishida pledged 10 patrol ships and communications equipment for the Philippines coast guard, according to media reports. Japan is fending off similar territorial claims that China his pressing over the Senkaku Islands in the East China Sea.

The United States has stayed neutral in the territorial disputes, saying only that they should be resolved through negotiation. The USA and the Philippines held discussions in December that del Rosario says should result in an increased naval rotational presence in the Philippines that “will serve to guarantee peace and stability in the region.”

Murray Hiebert, deputy director at the Center for Strategic and International Studies, says U.S. interests lie most clearly lie in maintaining the unrestricted movement of trade in the South China Sea.

“Freedom of navigation is absolutely critical,” he said. “A whole lot of oil and iPads move through there.”

China shows little sign of backing down, however.

In November, the Chinese province of Hainan said it police vessels may board and search foreign ships that “illegally” enter Chinese waters.

“If China persists in its view that (the South China Sea) is a Chinese lake, then we’re headed for conflict,” Roque said. “And I think every single nation on earth that wants to use the seas will have an interest in it.”

For now, solutions seem scarce. Some observers suggested that joint development of fishing and hydrocarbons in disputed areas is a reasonable way forward. But the charged environment is making cooperation increasingly difficult.

“If the political will were present, (joint development) would be possible,” said Robert Beckman, director of the Center for International Law at National University of Singapore. “However, under the present political climate, it seems unlikely.”

In Masinloc, the fishermen are looking to the future with a characteristically Filipino blend of fatalism and optimism. Masinloc’s fishery officer, Jerry Escape, says people are looking at other ways to earn a living, such as establishing more fish hatcheries to increase fish stocks closer to shore and promote tourism of its pristine areas.

“We will find a way,” he said. “We are Filipinos. That is what we do.”

Understanding our Unclos arbitral submission


images

After almost a year since our stalemate with China on Panatag Shoal, it’s about time we brought the controversy to the binding and compulsory dispute settlement procedure of the UN Convention on the Law of the Sea (Unclos). But contrary to many media reports, the action is not before the International Tribunal on the Law of the Sea (Itlos), or before the United Nations. What was initiated is ad hoc arbitration pursuant to the Unclos.

Under the dispute settlement procedure of the Unclos, state parties may specify where they will submit all disputes over the “interpretation and application” of the Convention, either to the International Court of Justice (ICJ) or the Itlos. If a state party does not specify which body it will bring these disputes to, the default choice will be through binding arbitration under Annex VII of the Convention. Since both China and the Philippines did not choose either the ICJ or the Itlos, they are both deemed to have agreed to resolve these disputes to binding arbitration.

What happened last Tuesday was that we began the procedure of binding arbitration by serving China with a notification that we are initiating the same and providing China with a statement of our claims. We have also chosen our arbitrator in what will be a 5-member arbitral tribunal. China should now choose its own arbitrator. Thereafter, both parties should select the rest of the arbitrators from a list maintained by the UN Secretary General. If they cannot agree on the three further arbitrators, it is the president of the Itlos who will make the appointment to complete the tribunal.

After the tribunal has been constituted, China will reply to our statement of claims. It is expected that it will challenge the jurisdiction of the tribunal by invoking its reservation on the dispute settlement procedure. This can either be that the controversy relates to the exercise of sovereign rights and/or involves an issue of maritime delimitation. Both these grounds are provided in the reservations made by China in 2006.

This raises the question as to why the Philippines did not hale China to binding arbitration under the Unclos before 2006. The first incident over Panatag occurred in 1997 during the term of President Fidel Ramos, when we arrested Chinese poachers for illegal fishing in the area and charged them before a metropolitan trial court in Zambales. At that time, China had not yet made reservations on the dispute settlement procedure of the Unclos. Perhaps it was thought that Panatag may be resolved through bilateral negotiations? Whatever the reason, we now have to contend with China’s defense that the dispute is subject to its reservations.

This notwithstanding, credit goes to the Solicitor General because our submission of claims is crafted in a manner that will exclude all of China’s reservations. For instance, the submission asked the tribunal to rule on the validity of the controversial “nine-dash line,” since it does not constitute either China’s internal waters, territorial sea, or exclusive economic zone. This asks the tribunal to rule, as an issue of interpretation of the Unclos, whether the nine-dash lines comply with the Convention. Likewise, China has built permanent structures on reefs such as Mischief and Subi, which are permanently under water. The submission prays that the tribunal declare that since these are neither “rocks” nor “islands,” these should be declared as forming part of our country’s continental shelf, or the natural prolongation of our land mass.

On Panatag, our submission asks the tribunal to declare that the six very small rocks permanently above water can generate only 12 nautical miles of territorial sea. This declaration, if made, will clarify that the waters surrounding the small rocks still form part of our 200-nautical-mile exclusive economic zone.

While our submission bodes well for a peaceful resolution of the dispute, it will still not completely resolve the West Philippine Sea disputes. The

Unclos, after all, being the applicable law on the seas, cannot be utilized to resolve conflicting claims to islands. This aspect of the dispute will still be resolved on the basis of which claimant-state has the superior evidence of effective occupation. Nonetheless, a legal clarification on China’s claims to alleged islands and rocks that are under water, as well as the issue of which state can exercise sovereign rights on the waters surrounding Panatag, will simplify resolution of the entire dispute.

If we are successful, what will remain for resolution is only the issue of conflicting claims to islands. While China will have to give its separate consent to litigate the status of these islands, at least the issue of freedom of navigation and the exercise of sovereign rights over a large part of the disputed waters will have a final and binding legal determination.

Lest I be accused of being overly optimistic, the truth is China may very well argue that its legal entitlement to the disputed waters is based on its “uncontroverted” sovereignty to land territories. Even if the arbitral tribunal cannot exercise jurisdiction over these claims to land territories, it may be enough to remove jurisdiction from it because the matter, as phrased by China, may no longer be an issue of  “interpretation” and “application” of the Unclos. If this happens, we will be back to where we were: a standoff.