ARBITRATION - Press Release

Please read the ARBITRATION - Press Release:

THE SOUTH CHINA SEA ARBITRATION(THE REPUBLIC OF THE PHILIPPINES V. THE PEOPLE’S REPUBLIC OF CHINA)

Court ruling due in South China Sea row between Philippines and China

Territorial disputes

The Permanent Court of Arbitration in the Hague is set to deliver its verdict on Tuesday, July 12. DW answers some of the questions related to the case to explain what the dispute is about and what is at stake.

Mischief Reef in the disputed Spratly Islands

What is the case about?

On January 22, 2013 the Philippines took the South China Sea (SCS) dispute to the Permanent Court of Arbitration (PCA) located at The Hague in the Netherlands.
Basically, the Philippines want the PCA to clarify three key issues:
1. Which legal status do China's claims in the SCS have, especially when it comes to the so-called nine-dash-line (NDL)?
2. Are the claimed areas islands, rocks or just submerged stretches of sand, whose surface can only be seen at low tide? This is one of the key questions, because in international law an island leads to an entirely different territorial claim than a rock.
3. The PCA is supposed to rule, whether China has been operating illegally inside the Philippines' exclusive economic zone (EEZ) and has prevented the Philippines from exploiting its economic zone.
The Philippines has opted out of clarifying the question: which country is able to claim sovereignty over islands, reefs and rocks in the disputed area? Manila wants to clarify how the United Nations Convention on the Law of the Sea (UNCLOS) has to be applied.
The cause of the dispute is some islets of the Spratly archipelago, which covers an area of more than 420,000 square kilometers in the SCS. The islands are controlled by various neighboring countries, together with some other reefs and rocks. "Scarborough Shoal," "Second Thomas Shoal," "Gaven Riff" and "Reed Bank" are among them.

What is the legal basis for the claims?

The Philippines refers to the United Nations Convention on the Law of the Sea (UNCLOS), which after years of negotiations was agreed on in 1982, and came into effect in 1994. Together with 165 other nations, the Philippines and the People's Republic of China (PRC) signed the convention. But the United States hasn't.
China claims to have historic rights and cites a series of controversial documents, some of them dating back to the Ming dynasty which ruled China between the 14th and 17th centuries. However, historic issues are not part of the jurisdiction of UNCLOS.
All signatories of the maritime convention have committed themselves to settle any issue peacefully. One mechanism is to take a dispute to court, even if one of the contestants declines arbitration.

Does the PCA have jurisdiction in this case?

On February 19, 2013 the People's Republic of China rejected the Philippines' move and said it did not accept the court's jurisdiction.
According to the PRC, Manila's decision will eventually lead to the question: which country has the right of sovereignty and where maritime borders have to be drawn? In other words, this dispute does not center on the interpretation of UNCLOS, but territorial issues. However, in the PRC's view, this exceeds the jurisdiction of the Permanent Court of Arbitration.

South China Sea dispute

Beijing argues that two treaties between China and the Association of Southeast Asian Nations (ASEAN) would be appropriate to solve the dispute: the ASEAN-China Declaration on the Conduct of Parties in the South China Sea (2002) and the ASEAN's Treaty of Amity and Cooperation in Southeast Asia from 1976 which was signed by China in 2003. The Philippines, in turn, has declared that all attempts to solve the dispute on the basis of the two treaties have been either blocked or delayed by China.
The court accepted the case and initiated proceedings on October 29, 2015, despite the PRC's objections. However, the tribunal rejected some of the Philippines' charges, declaring that the court's jurisdiction was only applicable to lawsuits connected to UNCLOS.
Until today, China does not acknowledge the court's jurisdiction and does not participate in the proceedings.

What is the nine-dash-line (NDL) all about?

The nine-dash-line (NDL) (sometimes it is also called ten- or eleven-dash-line) is a demarcation line which was used by the Republic of China for the first time on an official map in 1947. It illustrates the territorial claims of the Republic of China in the South China Sea.
The demarcation line was inherited by the Communist rulers of China after the PRC was founded in 1949 and, until today, is an official claim of the PRC.

From reef to island
Significant construction on Gaven Reef began in 2014, with a total of 114,000 square meters of land already created. Satellite pictures show just how fast construction has progressed on the reef. A new artificial island was created between March (left) and August (right) 2014.
 

There are two major problems with the nine-dash-line:
1. Nobody has ever defined where the actual dashes are located. There is no exact geographic data using longitudes and latitudes.
2. China has never clarified whether it only claims sovereignty over the islets, reefs and rocks inside the NDL or the entire area falling within the NDL.
Many legal experts say the NDL does not comply with international law.

What may happen after the verdict?

According to the UNCLOS, the court's ruling is binding on all contesting parties. Annex VII of the UNCLOS says the judgment is final and cannot be appealed. In theory, both countries have to accept the court's decision and adhere to it. Nevertheless, the Permanent Court of Arbitration in the Hague has no power to enforce the verdict.

At most, the signatories of UNCLOS could punish China with consequences regarding its rights as a member of three UNCLOS bodies: the International Tribunal for the Law of the Sea, the International Seabed Authority and the Commission on the Limits of the Continental Shelf.

China could be prompted to withdraw its judge from the International Tribunal for the Law of the Sea in Hamburg. Also, cases at the International Seabed Authority affecting Chinese interests could be shelved.

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UN Court of Arbitration will set a verdict on sea row on July 12 2016.

July 12, 2016 is the date where Permanent Court of Arbitration will set its ruling on the arbitration case filed by the Philippines against China in relation to occupying the West Philippine Sea.
The Permanent Court of Arbitration says that 'there will be no in-person meeting or ceremony for the rendering of the award.

The historic case is handled by an arbitral tribunal at the PCA. In these arbitration proceedings, the Philippines seek to nullify China's expansive claim over practically the whole South China Sea, parts of which the Philippines claims as the West Philippine Sea.

"The Tribunal will issue its Award on Tuesday, 12 July 2016, at approximately 11 am CEST, The Hague," the PCA said in a statement Wednesday evening, June 29.

"The Award will first be issued via e-mail to the Parties, along with an accompanying Press Release containing a summary of the Award. The Press Release will be in English and French, with an unofficial Mandarin Chinese translation provided," the PCA added.

"The Parties will receive originally signed versions of the Award. Hard copies of the Award will also be sent to the Embassies of States that were granted observer status for the hearings. There will be no in-person meeting or ceremony for the rendering of the Award," the PCA said.

The Philippines filed the memorial before The Hague-based Permanent Court of Arbitration (PCA) in 2013 after Chinese ships refused to withdraw from the Panatag (Scarborough) shoal, which is being claimed by China and the Philippines. The shoal is within the Philippines’ exclusive economic zone.
The government argued that China’s nine-dash-line claim over almost the entire West Philippine Sea (South China Sea) should be declared invalid because these are contrary to the provisions of the 1982 United Nations Convention on the Law of the Sea (Unclos).

Senior diplomats and foreign policy experts are holding marathon meetings at the Department of Foreign Affairs (DFA) to map out Manila’s strategy once the ruling has been handed down.

Brave PH fisherman stands up to China

In this March 28, 2016, photo, Filipino fisherman Renato Etac, from the Philippines, sits on his boat during an interview with the Associated Press in Cato, northwestern Philippines. More than once, Chinese coast guardsmen approached Etac’s boat and pointed their rifles at him, but he says he knew they would not fire and risk starting a war. AP

 CATO, Pangasinan—As Asian countries jostle for territory in the South China Sea, one Filipino fisherman is taking a stand.

He has faced down Chinese coast guard rifles, and even engaged in a stone-throwing duel with the Chinese last month that shattered two windows on his outrigger.

“They’ll say, ‘Out, out of Scarborough,’” Renato Etac says, referring to Scarborough Shoal, a rocky outcropping claimed by both the Philippines and China.

He yells back, “Where is the document that shows Scarborough is Chinese property?”

At one level, the territorial disputes in the South China Sea are a battle of wills between American and Chinese battleships and planes. At another level, they are cat-and-mouse chases between the coast guards of several countries and foreign fishermen, and among the fishing boats themselves.

Indonesia seized a Chinese fishing boat last month and arrested eight fishermen, only to have a Chinese coast guard vessel ram the fishing boat as it was being towed, allowing it to escape.

Vietnam’s coast guard chased away more than 100 Chinese boats over a two-week period, its state media reported this week, and made a rare seizure of a Chinese ship carrying 100,000 liters (26,400 gallons) of diesel oil, reportedly for sale to fishing boats in the area.

The South China Sea, a hodgepodge of overlapping territorial claims in the Pacific, is both strategically important and a vital shipping route for international trade. It may also contain valuable oil and natural gas reserves.

As tensions ratchet up, though, it is perhaps those who make a living at sea who feel it the most. Here are some stories from fishermen around the region.

 In this Feb.27, 2015 photo provided by Renato Etac, Chinese Coast Guard members approach Filipino fishermen as they confront them off Scarborough Shoal at South China Sea, also called the West Philippine Sea, in northwestern Philippines. More than once, Chinese coast guardsmen approached Etac’s boat and pointed their rifles at him, but he says he knew they would not fire and risk starting a war.(Renato Etac via AP)

Guardian of Scarborough

Renato Etac has had dozens of encounters with Chinese ships.

More than once, a small team of Chinese coast guardsmen on a rubber boat approached his boat and pointed their rifles at him, but he says he knew they would not fire and risk starting a war.

At other times, the Chinese will surge as if to hit his boat, but the 37-year-old fisherman uses his keen knowledge of Scarborough Shoal (which Filipinos refer to as Panatag Shoal or Bajo de Masinloc) where he has fished for Spanish mackerel, trevally and grouper since he was a teenager to outmaneuver them.

Etac says he just wants to defend his livelihood in waters that used to be open to all. China took control of Scarborough Shoal in 2012 after a two-month standoff with Philippine government ships. It sits about 230 kilometers (145 miles) west of the Philippines, and 1,000 km (620 miles) from the Chinese coast.

“It’s like quarreling, like playing games,” he says. “Yelling, dirty finger, everything’s there. Sometimes I use expletives in different dialects and I get to laugh when I see them, because they don’t understand what I’m saying.”

He enjoys what he calls the territorial “debates” in the high seas, though his earnings from a weeklong fishing expedition have dropped by more than half to P3,000 because of both the Chinese disruptions and competition.

“He’s like the guardian of Scarborough, sir,” said Greggy Etac, a relative and a fellow fisherman. “I used to sail with him, but now, I’m scared.”

Philippines' arguments vs China

The Philippines' case against China over the West Philippine Sea (South China Sea) boils down to 5 basic arguments.
Philippine Foreign Secretary Albert del Rosario outlined these claims on Tuesday, July 7, the first day of arguments at The Hague.
For the oral hearings that run until July 13, we've listed these 5 arguments, quoted verbatim from Del Rosario.
Below each argument, we've added our own notes to explain things in a nutshell. We've also included links to other stories for further reading and reference.
The Philippines' arguments revolve around the right to fish, as well as to exploit other resources, in the West Philippine Sea.
This right is based on the so-called Constitution for the Oceans, the United Nations Convention on the Law of the Sea (UNCLOS).
Under UNCLOS, a coastal state has the exclusive right to fish within its exclusive economic zone (EEZ), an area 200 nautical miles from the coastal state's baselines or edges.

1. China's 'historical rights'

 ARGUMENT: "First, that China is not entitled to exercise what it refers to as 'historic rights' over the waters, seabed, and subsoil beyond the limits of its entitlements under the Convention."
 EXPLANATION: China says the South China Sea has belonged to it for centuries. This is why it claims "historical rights" over the disputed sea.
 Senior Associate Justice Antonio Carpio of the Philippine Supreme Court, however, says that "even if true," these historical rights have no bearing on sea disputes under UNCLOS. Carpio explains that UNCLOS "extinguished all historical rights of other states." This UN convention instead gives each coastal state an EEZ.

2. China's 9-dash line

ARGUMENT: "Second, that the so-called 9-dash line has no basis whatsoever under international law insofar as it purports to define the limits of China’s claim to 'historic rights.'"
EXPLANATION: The 9-dash line is China's demarcation to claim virtually the entire South China Sea. China says this is based on its "historical rights."
The Philippines, however, asserts that the 9-dash line is baseless under UNCLOS. This UN convention allows an EEZ, not a 9-dash line.

3. Rocks vs islands

ARGUMENT: "Third, that the various maritime features relied upon by China as a basis upon which to assert its claims in the South China Sea are not islands that generate entitlement to an exclusive economic zone or continental shelf. Rather, some are 'rocks' within the meaning of Article 121, paragraph 3; others are low-tide elevations; and still others are permanently submerged. As a result, none are capable of generating entitlements beyond 12NM (nautical miles), and some generate no entitlements at all. China’s recent massive reclamation activities cannot lawfully change the original nature and character of these features."
EXPLANATION: Under UNCLOS, habitable islands can generate a 200-nautical-mile EEZ. Rocks cannot.
China describes some features in the South China Sea as islands. One of these is Panatag Shoal (Scarborough Shoal), a rocky sandbar. China claims these supposed islands.
China also says these "islands" generate an EEZ, which could overlap with the EEZ of the Philippines. The problem for the Philippines is, China declared in 2006 that it "does not accept" arbitral jurisdiction when it comes to overlapping EEZs. UNCLOS allows this exception.
This is partly why China says the tribunal at The Hague has no right to hear the Philippine case – because it supposedly involves overlapping EEZs.
"The maritime dispute between the Philippines and China boils down to whether there are overlapping EEZs between the Philippines and China in the West Philippine Sea," Senior Associate Justice Carpio says.
Carpio, however, explains that "China has no EEZ that overlaps with the Philippines' EEZ in the Scarborough area." Carpio also believes an international tribunal "will deny Itu Aba," the largest island in the Spratlys, an EEZ.
The Philippines adds that China's reclamation activities cannot "lawfully change" rocks into islands.

4. Breach of the law of the sea

ARGUMENT: "Fourth, that China has breached the Convention by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction."
EXPLANATION: China prevents Filipinos from fishing in the West Philippine Sea. UNCLOS, on the other hand, gives Filipinos the exclusive rights to fish within the Philippines' EEZ in the disputed waters.

5. Damage to environment

ARGUMENT: "China has irreversibly damaged the regional marine environment, in breach of UNCLOS, by its destruction of coral reefs in the South China Sea, including areas within the Philippines’ EEZ, by its destructive and hazardous fishing practices, and by its harvesting of endangered species."
EXPLANATION: China is building artificial islands in the West Philippine Sea. The Philippines says China's reclamation activities have buried 311 hectares of coral reefs – around 7 times the size of Vatican City. This can mean P4.8 billion ($106.29 million) in lost economic benefits. At the same time, China is accused of poaching.
China, for its part, refuses to answer the Philippines' arguments in arbitration proceedings. It has instead published a position paper debunking the Philippines' claims.
In the end, the Philippines says, the case at The Hague is set to provide a long-term solution to the sea dispute.
For Del Rosario, UNCLOS provisions "allow the weak to challenge the powerful on an equal footing, confident in the conviction that principles trump power; that law triumphs over force; and that right prevails over might." 

Credit:  Rappler.com

Discussion on the Phillipine’s Arbitration Case

Discussion on the Philippines Arbitration Case

Click Here for the Video Discussion: YouTube Video


The topic includes Reed Bank, Paracel Islands, Spratly Islands but the subject focus on Scarborough (Panatag) Shoal, Ayungin Reef, Mischief Reef and Philippines 200 nautical miles Exclusive Economic Zone (EEZ).

Mr. Paul S. Reichler
Partner, Co-Chair, International Litigation and Arbitration Department
Foley Hoag

CSIS Concourse Level, Room 115
1616 Rhode Island Avenue NW, Washington DC

Transcript of oral arguments on Philippines vs China arbitration case

The Arbitral Tribunal of the Permanent Court of Arbitration at The Hague, Netherlands released the full transcript of the oral hearings on the territorial disputes in the West Philippine Sea as requested by the Philippines.

Last July, the Philippines sent a delegation composed of top executives from the three government branches as the United Nations arbitral tribunal opened the arbitration court proceedings on the sea dispute.

Day 1: Tuesday, 7th July 2015 
arbitration-case-transcript-day1
 
Day 2: Wednesday, 8th July 2015
arbitration-case-transcript-day2
 
Day 3: Monday, 13th July 2015
arbitration-case-transcript-day3

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Philippines vs. China at The Hague

 

The Philippines’ quest for peacefully resolving territorial disputes in the South China Sea has entered a critical stage. After more than two years of hard work and extensive preparations, culminating in the thousand-page-long memorial, Manila has the chance to convince the arbitral tribunal at The Hague that its case deserves to be heard.

The ultimate aim is to ensure all claimant countries honor their treaty commitments under prevailing international legal regimes, particularly the United Nations Convention on the Law of the Sea (UNCLOS), which has been ratified by the Philippines (1984) and China (2006) alike.

The Philippines has been praised by nations around the world, because it is the first country to have dared (under Art. 287 and Annex VII of UNCLOS) to take China to the court. Throughout my visits to and interactions with colleagues and officials from sympathetic countries across the Pacific region — and, I must say, there are many of them — I have constantly been told about how they genuinely admire our government’s decision to resort to compulsory arbitration despite China’s vehement opposition.

Though China has refused to engage the legal proceedings, claiming “inherent and indisputable” sovereignty over almost the entire South China Sea, the UNCLOS (under Art. 9, Annex VII) has not barred the resumption of our arbitration efforts, which kicked off in early 2013. Without a doubt, the Aquino administration has made a very bold decision by taking on China directly — albeit not through force, but instead the language of law.  

Beijing knows it would be very difficult to justify its notorious nine-dashed-line doctrine, so it has instead chosen to sabotage the Philippines’ arbitration efforts by raising technicality-procedural questions. China has deployed three related arguments that aim to put into question whether the arbitral tribunal should exercise jurisdiction at all.

China cites that the UNCLOS doesn’t have the mandate to address sovereignty-related (title to claim) questions, while, invoking Art. 298 back in 2006, China has opted out of compulsory arbitration on issues that concern its territorial claims, among others. China also claims that it is premature to resort to compulsory arbitration, since alternative mechanisms haven’t been fully exhausted. The Philippines’ savvy legal team, however, has tried to address the jurisdiction issue by eschewing the sovereignty question, instead focusing on two major issues.

First, the Philippines has emphasized the importance of clarifying (under Art. 121 of UNCLOS) the nature of disputed features: Whether they are low-tide or high-tide elevations or islands, since this has a huge implication on whether the features can be appropriated at all or can generate their own 200 nautical miles Exclusive Economic Zone (EEZ).

Perhaps the most important argument of the Philippines’ is that the arbitral tribunal should examine (and hopefully invalidate) China’s nine-dashed-line claims, which are based on pre-modern, questionable, and vague notion of “historical rights/waters”. In short, we want to make sure all claimant countries harmonize their claims and maritime behavior along modern, internationally-accepted legal principles, not obscure doctrines.

But practically everyone agrees that China has to first clarify sweeping territorial claims, which are neither consistent nor precise. Up to this day, it is not clear whether China is claiming the entire South China Sea or only the features and fisheries and hydrocarbon resources in the area. And if China doesn’t even clarify the precise coordinates of its claims, it would be almost impossible to have any viable joint development scheme among claimant countries.

The Philippines’ case has also presented a huge dilemma for arbitration bodies under UNCLOS. If the Arbitral Tribunal turns down jurisdiction, and refuses to even hear the merits of our arguments, then the very viability of international law as a conflict-management/resolution mechanism will come under question.

At the same time, if it decides to push ahead and eventually rule against China, then there is a huge risk that, as a good friend Columbia University Professor Matthew C. Waxman puts it, it would be "ignored, derided and marginalized by the biggest player [China] in the region." After all, there are no multilateral compliance-enforcement mechanisms to force China — a permanent member of the UN Security Council — to abide by any unfavorable verdict.

In practical terms, the big concern is that while the legal cycle slowly grinds, China is actually changing the facts on the ground on a daily basis. This is why it is extremely important that the Philippines remains vigilant, and primarily focuses on tangibly guarding its interests on the frontline by fortifying its position on features it already controls, negotiate necessary measures (i.e., hotlines) to prevent unwanted clashes and escalation in the high seas, and employ all instruments in its toolkit to protect its territorial integrity.

An urgent concern, in particular, is to prevent China from imposing an Air Defense Identification Zone (ADIZ) in the Spratly chain of islands, which may give Beijing the ability to choke off the supply-lines of other claimant states and dominate arguably the world’s most important maritime highways. The truth is that, we can’t only rely on UNCLOS to address this critical situation, and we will need the help of our allies and partners across the world as well as the full support of the Filipino nation.

 

By Richard Javad Heydarian, special for CNN Philippines

July 9, 2015

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