PH rarin’ to go to Round 2

Tough fight looms as UN court accepts case vs China

THE PHILIPPINES is raring to go into Round 2 with China after scoring a knockdown in Round 1 on Thursday, when a United Nations arbitral court ruled that it has jurisdiction to hear Manila’s case seeking to invalidate Beijing’s claim to nearly all of the South China Sea.

Solicitor General Florin Hilbay confirmed yesterday that the UN Permanent Court of Arbitration has set Nov. 24 to 30 as the preliminary dates for the Philippines to lay down its case against China at The Hague, the second round of oral arguments on the case Manila initiated on Jan. 22, 2013.

“The decision represents a significant step forward in the Philippines’ quest for a peaceful, impartial resolution of the disputes between the parties and the clarification of their rights under Unclos (United Nations Convention on the Law of the Sea),” Hilbay said in a statement.

“The elimination of preliminary ob-

jections to the exercise of the tribunal’s jurisdiction opens the way for the presentation of the merits of the Philippines’ substantive claims,” said Hilbay, the Philippines’ agent in the case.

A contrary ruling would have led to the termination of the proceedings.

The Department of Foreign Affairs (DFA), the agency at the lead of the legal action, welcomed the ruling, saying it looked forward to the tribunal’s further hearing on the merits of the case.

China rejection

China refused to take part in the arbitration and yesterday rejected the tribunal’s ruling, saying the case would not affect its sovereign claims in the South China Sea.

“We will not participate and we will not accept the arbitration,” Vice Foreign Minister Liu Zhenmin told reporters in Beijing.

“The ruling or the result of arbitration will not affect China’s position,” he added. “It won’t affect China’s sovereignty rights and jurisdiction in the South China Sea, our rights will not be undermined.”

The foreign ministry also urged the Philippines to return to the “correct path” of talks to resolve their territorial dispute, a position that Manila has long rejected.

Assistant Foreign Secretary Charles Jose, the DFA spokesperson, said the arbitral tribunal was expected to issue further instructions in the coming weeks, including whether the Philippines should submit further pleadings.

The proceedings will be held at the Peace Palace in The Hague, the headquarters of the Permanent Court of Arbitration, an intergovernmental organization that facilitates international arbitration and dispute resolution proceedings.

It was also the venue of oral arguments held in July when the Philippines presented its case to convince the tribunal that it had jurisdiction over the case.

“The hearing will provide an opportunity for the parties to present oral arguments and answer questions on the merits of the Philippines’ claims and any remaining issues deferred from the jurisdictional phase,” the tribunal said in a statement issued on Thursday announcing the decision.

Observers welcome

The proceedings will not be open to the public, just like the July jurisdictional phase hearings. But the oral arguments will be open to interested states who would like to take part as observers.

Countries that sent delegations to observe the earlier proceedings “will be informed of the hearing dates,” the court said.

Those countries are Vietnam and Malaysia, both claimants in the six-way maritime dispute, Japan, which has its own unresolved disputes with China in the East China Sea, as well as Indonesia and Thailand.

“The tribunal had already provisionally sought the views of the parties on the dates for the hearing and will shortly confirm the schedule,” the court said.

A final ruling on the case is not expected until next year.

In its decision, the five-member tribunal unanimously ruled that it had jurisdiction to proceed with the case, rejecting China’s position that the Philippine case was beyond the panel’s jurisdiction.

The 151-page decision found that “[t]he tribunal was properly constituted under Annex VII (Arbitration) of Unclos.”

“China’s nonappearance in these proceedings does not deprive the tribunal of jurisdiction,” the tribunal said.

“The Philippines’ act of initiating this arbitration did not constitute an abuse of process,” it said.

“There is no indispensable third party whose absence deprives the tribunal of jurisdiction,” it said.

Earlier bilateral negotiations and declarations “do not preclude” recourse to the compulsory dispute settlement procedures” under Unclos, it said.

Seven PH assertions

Out of the Philippines’ 15 submissions (or issues for arbitration), the tribunal concluded that it had jurisdiction over seven assertions:

Panatag Shoal (international name: Scarborough Shoal) generates no entitlement to an exclusive economic zone (EEZ) or continental shelf.

Panganiban Reef (Mischief Reef), Ayungin Shoal (Second Thomas Shoal) and Zamora Reef (Subi Reef) “are low-tide elevations that do not generate entitlement to a territorial sea, EEZ or continental shelf” and that they cannot be appropriated by occupation.

Gavin Reef (Gaven Reef) and McKennan Reef (Hughes Reef) are low-tide elevations that do not generate entitlement to a territorial sea, EEZ or continental shelf, but their lowwater line may be used to determine the baseline from which the breadth of the territorial sea of Binago Island (Namyit Island) and Rurok Island (Sin Cowe Island), respectively, is measured.

Mabini Reef (Johnson South Reef), Calderon Reef (Cuarteron Reef) and Kagitingan Reef (Fiery Cross Reef) generate no entitlement to an EEZ or continental shelf.

China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Panatag Shoal.

China has violated its obligations under Unclos to protect and preserve the marine environment at Panatag Shoal and Ayungin Shoal.

China has breached its obligations under Unclos by operating its law enforcement vessels in a dangerous manner causing serious risk of collision to Philippine vessels navigating in the vicinity of Panatag Shoal.

Seven other submissions “will need to be considered in conjunction with the merits,” the tribunal said.

These include the Philippine assertions that:

China’s maritime entitlements may not extend beyond what Unclos states.

China’s nine-dash-line claim in the South China Sea should be declared invalid.

China has “unlawfully aggravated and extended the dispute” through preventing Philippine navigation, rotation and resupply of its troops on Ayungin Shoal.

China’s occupation and construction activities on Panganiban Reef violate Unclos.

Panganiban Reef and Ayungin Shoal are parts of the EEZ and continental shelf of the Philippines.

China has interfered with the Philippines’ exercise of its sovereign rights to resources within its EEZ.

China “unlawfully failed to prevent its nationals and vessels” from exploiting resources within Philippine territory.

China desistance

The ruling also “directs the Philippines to clarify the content and narrow the scope” of its 15th submission: That “China shall desist from further unlawful claims and activities.”

The ruling was released amid tensions in the South China Sea following a US Navy sail-by at Zamora Reef on Tuesday, in a show of US resolve not to recognize China’s expansive claims in the disputed waters.

While refusing to participate in the case and asserting its “indisputable sovereignty” over the South China Sea, China issued a position paper in December last year outlining its defense against the Philippines’ assertions.

The paper, which the tribunal also used in deciding whether it had jurisdiction over the case, claimed that the Philippines sought to settle sovereignty issues over the disputed reefs and to delineate maritime boundaries in the South China Sea.

But the panel ruled that the Philippines’ submissions “reflect disputes between the two states concerning the interpretation or application” of Unclos.

“Reviewing the claims submitted by the Philippines, the tribunal has rejected the argument set out in China’s position paper that the parties’ dispute is actually about sovereignty over the islands in the South China Sea and therefore beyond the tribunal’s jurisdiction,” the tribunal said.

“The tribunal has also rejected the argument set out in China’s position paper that the parties’ dispute is actually about the delimitation of a maritime boundary between them and therefore excluded from the tribunal’s jurisdiction through a declaration made by China in 2006,” it said.

Not sovereignty issue

The Philippines has long maintained that the arbitration case does not seek an award on sovereignty, or who owns which features in the South China Sea, nor does it seek to set maritime delineations.

It says the case instead seeks to invalidate China’s nine-dashline claim, being inconsistent with Unclos, and to declare that China, through its fishing and construction activities in the South China Sea, has violated Unclos by interfering with the Philippines’ exercise of its sovereign rights within its EEZ.

It also says the Philippines seeks a determination of the status of maritime features in the South China Sea—whether they should be considered islands, rocks, low-tide elevations or submerged banks.

An island, it says, “generates an exclusive economic zone or entitlement to a continental shelf” extending to 370 km; rocks generate a territorial sea entitlement to 21 kilometers.

Significantly, the decision held that, despite China’s decision to shun the proceedings, it must respect Unclos provisions on dispute settlement, which includes the right of parties to initiate arbitration proceedings.

“[The] Philippines and China are parties to the convention and bound by its provisions on the settlement of disputes,” the tribunal read.

The court also held that “China’s decision not to participate in these proceedings does not deprive the tribunal of jurisdiction.”

It shot down China’s claim that the Philippines’ decision to unilaterally initiate arbitration proceedings was an abuse of dispute settlement procedures under Unclos.

The UN panel also sustained the Philippines’ decision to seek legal recourse, recognizing that it had exhausted bilateral options toward a resolution.

“[T]he tribunal held that the Philippines has sought to negotiate with China and noted that it is well established that international law does not require a state to continue negotiations when it concludes that the possibility of a negotiated solution has been exhausted,” the court said.

Other ways of settlement

Contrary to China’s assertions, the tribunal also dismissed claims that other dispute settlement mechanisms and earlier bilateral pacts between Manila and Beijing had prevented the Philippines from seeking relief under Unclos and deprived the tribunal of jurisdiction over the case.

The Chinese position paper identified these as: the 2002 China–Association of Southeast Asian Nations Declaration on the Conduct of Parties in the South China Sea, a series of joint statements issued by the Philippines and China referring to the resolution of disputes through negotiations, the Treaty of Amity and Cooperation in Southeast Asia, and the Convention on Biological Diversity.

“The tribunal… recognizes that the parties’ many discussions and consultations did not address all of the matters in dispute with the same level of specificity that is now reflected in the Philippines’ submissions. This is to be expected and constitutes no bar to the Philippines’ claims,” the tribunal said in its ruling.

“Accordingly, and for the foregoing reasons, the tribunal concludes that neither Article 283 [of Unclos, which requires parties in disputes an “obligation to exchange views], nor the obligation to seek a solution through pacific means, including negotiation, poses any bar to the tribunal’s consideration of the submissions presented by the Philippines,” it said.