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

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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