Understanding the Unclos decision

OUR PEOPLE have every reason to celebrate the decision (technically called “AWARD ON JURISDICTION AND ADMISSIBILITY”) dated Oct. 29, 2015, of the “Arbitral Tribunal constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea” (Arbitral Tribunal or Tribunal, for short) that unanimously held it had jurisdiction to hear and decide the case filed by the Philippines against China.

Not on land ownership. Had the Arbitral Tribunal ruled otherwise (that it had no jurisdiction), the arbitration would have ended immediately as a dismal defeat for the Philippines. China would have completely won in absentia.

Awards of the Tribunal are final. Unlike in our country, they are not subject to a motion for reconsideration, or to an appeal to any other international tribunal or court.

Having assumed jurisdiction, the Tribunal will hereafter conduct further hearings to decide the case “on its merit.” Contrary to what some commentators suggest, the Tribunal, even after assuming jurisdiction, will not render any decision granting territorial rights to the Philippines or China.

Hence, it cannot award ownership over any of the islands or isles claimed or occupied by the Philippines or China or any other country. In fact, the Philippines—conscious of this limitation—is not asking for any ruling on the “territorial aspects of its disputes with China.”

Aside from assuming jurisdiction, the Tribunal’s 151-page “Award” also explained clearly the respective positions of the Philippines and China, and how the hearing “on the merit” would be conducted.

PH submissions. In its “Memorial” or written arguments dated June 30, 2014, the Philippines set out 15 “submissions” that can be summed up into three basic claims.

First, it “seeks declarations that the Parties’ respective rights and obligations in regard to the waters, seabed, and maritime features of the South China Sea are governed by UNCLOS and that China’s claims based on ‘historic rights’ encompassed within its so-called ‘nine-dash line’ are inconsistent with Convention and therefore invalid.”

My comment: If the Tribunal grants this in full, China’s omnibus claims over the entire South China Sea would be deemed illegal under international law. By sailing a warship within 12 nautical miles of an isle occupied by China, the United States signaled its conformity to this Philippine claim.

Second, it “seeks determination as to whether, under the Convention, certain maritime features claimed by both China and the Philippines are properly characterized as islands, rocks, low tide elevations, or submerged banks.”

Consequently, if these are “islands,” they could generate an exclusive economic zone (EEZ) or entitlement to a continental shelf extending as far as 200 nautical miles. If, however, these are “rocks,” they could generate a territorial sea no greater than 12 nautical miles. If they are neither islands or rocks, but merely low-tide elevations or submerged banks, they would be incapable of generating any such entitlements. No amount of artificial reclamation work can change the status of such features.

My comment: If the Tribunal grants this in full, all Philippine-authorized explorations and extractions of minerals, oil and other natural resources in the West Philippine Sea would be legally justified.

Third, it “seeks declarations that China has violated the Convention by interfering with the exercise of the Philippines’ sovereign rights and freedoms under the Convention and through constructions and fishing activities that have harmed the marine environment.”

My comment: If the Tribunal grants this in full, the Philippines would be able to exercise and enjoy maritime, fishing, ecologic and other similar rights within and beyond its economic zone and continental shelf.

China’s position. China has consistently refused to participate in the arbitration. But it published a “Position Paper” dated Dec. 7, 2014, wrote many “diplomatic Notes Verbales” and sent two letters to members of the Tribunal, all arguing that the Tribunal has no jurisdiction, and that the solution to the row is “bilateral negotiations and friendly consultations.”

China stressed it would not be bound by any decision of the Tribunal. But it did “not express any position on the substantive issues ... initiated by the Philippines.”

Nonetheless, the Tribunal “(a) ensured that all communications ... [were] promptly delivered ... to China; (b) granted China adequate ... time to [respond] to pleadings submitted by the Philippines; (c) invited China to comment on procedural steps taken ... (d) provided China with adequate notice of hearings; (e) promptly provided China with copies of transcripts of the Hearing on Jurisdiction and all documents submitted...; (f) invited China to comment on anything said during the Hearing...; (g) made the Registry staff available to the Chinese Embassy to answer any question...; and (h) reiterated that it remains open to China to participate in the proceedings at any stage.”

Will our people celebrate again when they receive the Tribunal’s decision next year? Abangan!

*** Clarification. Re my piece last Sunday (“Going for the jugular”), Solicitor General Florin T. Hilbay clarified that, while he would “really love the chance of crossing swords with [former] Solgen Estelito P. Mendoza, the Sandiganbayan (SBN) law requires the Special Prosecutor of the Office of the Ombudsman (not him) to defend SBN decisions in the Supreme Court.”

*** Comments to chiefjusticepanganiban@hotmail.com