Pil-arbitration.docx

I.

Background and Claims of the Philippines and China The South China Sea has become a region of disputes mainly because of the different states claiming over it. Owing to its strategic location that offers economic advantages and abundant natural resources, it is no surprise that countries around the area are claiming maritime rights and entitlements as well as the protection of marine life and the environment of the region in the exercise of its alleged jurisdiction. Several Asian countries claim different regions in the South China Sea with China at its center; the Scarborough Shoal is claimed by both Philippines and China; the Paracel Islands are disputed by China, Taiwan and Vietnam; the Spratly Islands are claimed by Vietnam, China, Taiwan, Philippines and Malaysia; and, the Senkaku or Diaoyu Islands are claimed by Japan, China and Taiwan1. These claims have been going on from centuries ago and brought about international deadlock in arbitration and bilateral relations. China’s claim over these territories is founded upon the ‘nine-dash line’ on its official maps of the region derived from a 1947 map drawn by Yang Huairen, a geographer for the Nationalist Government that fell in 19492. Based on this principle, it gives China the sovereignty over all these territories inside the demarcation including fishing rights, navigation rights and a right to build any improvements thereon3. China has claimed these regions allegedly based on a ‘historic right’. The case was brought for arbitration to the Permanent Court of Arbitration (PCA), under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The arbitration on the South China Sea was conducted between the Republic of the Philippines and the People’s Republic of China. The PCA facilitates arbitration, conciliation, fact-finding and other dispute resolution proceedings among various combination of States, State entities, intergovernmental organizations and private parties4. The PCA is an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes5. Both the Philippines and China are parties to the UNCLOS. The Philippines ratified it on 8 May 1984 while China ratified it on 7 June 19966. The Philippines has put forward the following four main issues: 1. To resolve a dispute between the parties regarding the source of maritime rights and entitlements in the South China Sea; 1

South China Sea. See https://www.lowyinstitute.org/issues/south-china-sea. Accessed on February 13, 2019. The South China Sea Disputes: A clash of international law and historical claims. Benjamin Black. Journal of Law and International Affairs. Pennsylvania State University, Pennsylvania, USA. 22 March 2018. see https://sites.psu.edu/jlia/the-south-china-sea-disputes-a-clash-of-international-law-and-historical-claims/ 3 See http://www.globalnation.inquirer.net/159582/asean-south-china-sea-arbitral-ruling-maritime-dispute. Accessed on February 13, 2019. 4 Ibid. 5 The South China Sea Arbitration (Republic of the Philippines v. The People’s Republic of China). Press Release. Permanent Court of Arbitration. Hague, Netherlands. 12 July 2016. p. 3. 6 In the Matter of An Arbitration between The Republic of the Philippines and The People’s Republic of China (Award on Jurisdiction and Admissibility). Permanent Court of Arbitration. PCA Case No. 2013-19. 29 October 2015. ¶ 106. 2

2. To resolve a dispute between the parties concerning the entitlements to maritime zones that would be generated under the Convention by Scarborough Shoal and certain maritime features in the Spratly Islands that are claimed by both the parties; 3. To resolve a series of disputes concerning the lawfulness of China’s actions in the South China Sea, vis-à-vis interfering with Philippine’s rights, failing to protect and preserve the marine environment, and inflicting harm on the marine environment (through land reclamation and construction of artificial islands); 4. To find that China has aggravated and extended the disputes between the Parties by restricting access to a detachment of Philippines Marines stationed at Second Thomas Shoal7 In its Position Paper dated 7 December 2014, through China’s Foreign Ministry, it argued that the Tribunal has no jurisdiction because: 1. The essence of the subject-matter of the arbitration is territorial sovereignty over several maritime features in the South China Sea; 2. China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations; 3. The subject-matter would constitute an integral part of maritime delimitation between the two countries.

II.

Decision on the Merits by the Tribunal

In its Award of 12 July 2016, the Tribunal considered whether China’s claim based on ‘historic title’ is within the ambit of Article 298 of the Convention. However, as can be gleaned from China’s claim and conduct over the South China Sea, China is only claiming the resources within the ‘nine-dash line’ but does not claim historic rights over the waters of the South China Sea. The Tribunal found that the Philippines’ Submission do not concern boundary delimitation as such, but dependent on certain areas forming part of the Philippines’ exclusive economic zone and China has no claim over the exclusive economic zone overlapping that of the Philippines in the Spratly Islands.8 The Tribunal found that China’s claim to historic rights to resources was incompatible with the rights and maritime allocation under the Convention and such rights were extinguished by entry into force of the Convention.9 The Tribunal concludes that the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.10

7

Case Brief on the South China Sea Arbitration between the Republic of the Philippines and the People’s Republic of China by the Permanent Court of Arbitration. Abeer Mustafa. Research Society of International Law. Islamabad, Pakistan. 12 August 2017. see http://rsilpak.org/2017/08/case-brief-on-the-south-china-seaarbitration/. 8 The South China Sea Arbitration (Republic of the Philippines v. The People’s Republic of China). Press Release. Permanent Court of Arbitration. Hague, Netherlands. 12 July 2016. 9 Ibid. 10 In the Matter of An Arbitration between The Republic of the Philippines and The People’s Republic of China (Award on Jurisdiction and Admissibility). Permanent Court of Arbitration. PCA Case No. 2013-19. 29 October 2015. ¶ 278.

Next, the Tribunal looked into the features of the South China Sea. It differentiates between low-tide elevations, high tide features and rocks. This is not to settle disputes on sovereignty but to relate the maritime entitlement generated by that feature. Under Articles 13 and 121 of the Convention, features that are above water at high tide generate an entitlement to at least a 12 nautical mile territorial sea, whereas features that are submerged at high tide generate no entitlement to maritime zones11. Under Article 121 of the Convention, islands generate an entitlement to an exclusive economic zone of 200 nautical miles and to a continental shelf, but “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”12 The Tribunal found that Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson Reef, McKennan Reef and Gaven Reef (North) were all found to be high-tide features and the same holds true of the Spratly Islands thus China has no maritime entitlement over these zones. The Tribunal concluded that when it comes to the Chinese activities in the South China Sea, China had (a) interfered with Philippine petroleum exploration at Reed Bank, (b) purported to prohibit fishing by Philippine vessels within the Philippines’ exclusive economic zone, (c) protected and failed to prevent Chinese fishermen from fishing within the Philippines’ exclusive economic zone at Mischief Reef and Second Thomas Shoal, and (d) constructed installations and artificial islands at Mischief Reef without the authorization of the Philippines. The Tribunal further concluded that China violated Articles 192 and 194 of the Convention wherein states are bound to preserve and protect the marine environment. China failed on its obligation on its recent large scale land reclamation and construction of artificial islands at seven features in the Spratly Islands which has caused severe harm to the coral reef environment.13 The Tribunal recalled that there exists a duty between states not to do acts that could aggravate the issues in dispute during the pendency process. However, the Tribunal noted that China has (a) built a large artificial island on Mischief Reef, a lowtide elevation located in the exclusive economic zone of the Philippines; (b) caused permanent, irreparable harm to the coral reef ecosystem and (c) permanently destroyed evidence of the natural condition of the features in question. 14These actions from China obviously constitute a violation of such obligation.

III.

Conclusion and Recommendation

Both Philippines and China are parties to the United Nations Convention on Law of the Seas (UNCLOS). Accordingly, both states are bound to the dispute procedures provided for in Part XV of the Convention with respect to any disputes arising between states. Consequently, the Tribunal Award is binding pursuant to Article 296 (1) which states that:

11

The South China Sea Arbitration (Republic of the Philippines v. The People’s Republic of China). Press Release. Permanent Court of Arbitration. Hague, Netherlands. 12 July 2016. p. 9. 12 Ibid. p. 10. 13 Ibid. 14 Ibid. p. 11.

“Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.”

And Article 11 of Annex VII which provides that: “The award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute.”

Thus, nonappearance by a state party does not affect the findings of the Tribunal and the binding nature of the Award. Despite the Arbitration award, China has repeatedly reject the arbitration. The Tribunal further rejected China’s argument based on the ‘nine-dash’ line ruling against it as a violation of the provisions of the Convention. China’s ‘historic rights’ over these areas also has no bases. Notably, China had encroached upon our recognized exclusive economic zones as laid down by the United Nations Convention on the Law of the Seas. Consequently, the Award further reinforce the idea of free navigation by all countries in the South China Sea. Unlike the International Court of Justice, the PCA is less powerful. A state party have recourse under Article 94 in the UN Charter to enforce ICJ’s ruling, which states that: “If any party to a case fails to perform the obligation incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”

However, ignoring the findings of PCA would mean ignoring international law. The international friction would result to members of the UN Security Council to seek UN Security Council for resolution.15 The Philippines clearly has jurisdiction over the maritime zones in the disputed region of the South China Sea, as part of our exclusive economic zones. Now comes the enforcement of the Award. Many assumed that such an Award is nothing more than a piece of paper because China continues to reject the arbitration award. China as one of the “great powers” is definitely more equipped with resources, a far outcry to a small country like the Philippines. War is out of the question. War as a mean of settling a dispute is prohibited by our Constitution and has long been banned by the United Nations and international community. The peaceful means of settling disputes between states is through arbitration as clearly defines by the UN Charter. Many experts believe that the best way to approach the arbitration is a continuing dialogue not only with Philippines and China but other states as well claiming rights over the disputed region. What the Philippine government could possibly do is to strengthen its foreign policy. In an article published in the Foreign Service Information of the Philippines, it succinctly suggested that “the Philippines could also take advantage of China’s openness to “provisional arrangements” in the disputed areas, as determined by the tribunal, but it should not easily settle with “joint development” in what should now be non–legally-disputed areas. If the Philippines still 15

The South China Sea: Next Stop the UN security Council?. Greg Raymond. 30 May 2016. see: https://www.lowyinstitute.org/the-interpreter/south-china-sea-next-stop-un-scurity-council.

determines joint development in the West Philippine Sea to be in its national interest, then it should make sure that it safeguards its sovereign rights in its exclusive economic zone.”16 The tribunal award does not resolve any dispute between the two countries. Nonetheless, it opened a new venue for a more thorough bilateral agreement.

16

Probing the (Im)possibility of China’s Compliance with the South China Sea Arbitration Award. Edcel John A. Ibarra. VOL. IV, NO. 2 July 2017. See http://www.fsi.gov.ph/probing-the-impossibility-of-chinas-compliancewith-the-south-china-sea-arbitration-award/.

On the Arbitration Case of the South China Sea A Reaction Paper as one of the Requirements on Public International Law

Submitted to: Atty Sherrymae O. Velos Dean, College of Law

Submitted by: Junalyn Y Remerata, LLB-2