From the Philippine News Agency (Oct 30):
(News Feature) International Tribunal trounces China’s arguments in sea feud and why it matters for PHL
On October 29, 2015, the Permanent Court of Arbitration has
ruled that it has jurisdiction on the Philippines’
case questioning the legality of China’s
enormous claims in the South China Sea.
The decision, which was welcomed by the Philippine
government and its ally, the United States,
came more than three months after Manila’s legal
team and top diplomats presented its arguments in The Hague from July 7 to 13 to try to
convince the court to assume authority over its case.
With this ruling, the Tribunal said Manila’s case will proceed to the next phase
-- the hearing on merits -- and expects to hand down a final ruling by 2016.
The ruling by the court is a legal setback for China that for the first time debunks legal
arguments that China uses to
justify its massive territorial claim in the resource-rich waters, where Vietnam, Malaysia,
Brunei, and Taiwan -– regarded by Beijing as its renegade province -– have
overlapping claims.
South China Sea analyst Professor Carl Thayer of the University of New South
Wales at the Australian
Defense Force
Academy hailed the court ruling “a
victory in the first instance for the Philippines.”
“The Arbitral Tribunal has answered in the affirmative to
two important legal questions -– its competence to hear the case and the fact
that the Philippines
had made a case in international law,” Thayer said.
The legal process involved two parts: jurisdiction and
admissibility of the Philippine complaint and hearing on the merits of the
case.
This arbitration, initiated by the Philippines in January 2013, is limited to
determining the role of “historic rights” and the source of maritime
entitlements in the South China Sea, according to a press statement issued by
the Tribunal in The Hague.
The Netherlands
court can not rule on the ownership of the contested features. Its mandate is
limited to the interpretation or application of the 1982 United Nations
Convention on the Law of Sea on the 15 points that the Philippines raised against China, called
“submissions” in arbitration parlance.
The Philippines’ case is anchored on the 1982 convention
which allows coastal states the right to manage, explore and exploit areas
within its 200-nautical mile exclusive economic zone.
It also tackles the status of certain maritime features in
the South China Sea and the maritime entitlements they are capable of
generating, and the lawfulness of certain actions by China in the South China
Sea that are alleged by the Philippines to violate the UNCLOS.
The Philippines
said China’s
“indisputable” and “historical” claim that extends beyond what is allowed by
the UNCLOS infringes on the country’s maritime jurisdiction and prevents it
from exercising its right under the convention.
China did
not participate in the arbitration, saying it does not recognize the Philippines’
case, calling it baseless and lacking in legal merit.
It repeatedly stated that “it will neither accept nor
participate in the arbitration unilaterally initiated by the Philippines.”
China
also insisted that the tribunal is not the proper legal venue to hear Manila’s case.
According to China,
the essence of Manila’s case is territorial
sovereignty over several maritime features in the South
China Sea, which is beyond the scope of the said court’s mandate.
The Philippines
has emphasized that it is not requesting the Tribunal to decide the question of
sovereignty over maritime features in the South China Sea that are claimed by
both Manila and Beijing nor has it asked the court to delimit
any maritime boundary between them.
China also insisted that the territorial rifts must be
resolved bilaterally, specifically through the 2002 Declaration on the Conduct
of Parties in the South China Sea or DOC, a non-binding non-aggression pact
signed by China and the 10-member Association of South East Asian Nations
(ASEAN), of which the Philippines and other claimants like Vietnam, Malaysia
and Brunei are members.
In its 147-page decision, the tribunal rejected China’s
argument that the tribunal do not have authority to rule on the case.
It also rejected the argument that the dispute is actually
about the delimitation of a maritime boundary between them and therefore
excluded from the Tribunal’s jurisdiction.
On the contrary, the Tribunal has held that each of the Philippines’ 15
submissions reflect that the disputes between the two states concern the
interpretation or application of the UN Convention.
It likewise debunked China’s
argument that the 2002 accord “constitutes an agreement to resolve disputes
relating to the South China Sea exclusively
through negotiation.”
According to the Tribunal, the China–ASEAN Declaration is “a
political agreement that was not intended to be legally binding and was
therefore not relevant to the provisions in the Convention that give priority
to the resolution of disputes through any means agreed between the Parties.”
It added that certain other agreements and joint statements
by China and the Philippines “do not preclude the Philippines from seeking to resolve its dispute
with China
through the Convention.”
Further, the court said the Philippines
has met the Convention’s requirement that it has exhausted all options and
avenues of negotiations with China
before seeking compulsory arbitration.
While it has ruled to proceed with the case, the tribunal
explained that its jurisdiction initially covers seven out of 15 submissions by
Manila against China.
These submissions concern Chinese occupation of
Philippine-claimed features in the South China Sea.
The court, meanwhile, decided to defer for “later
consideration” its jurisdiction ruling on eight other issues, including the one
questioning the validity of China’s so-called nine-dash line claim, saying a
decision will be made “in conjunction” with the hearing on the merits of the
case.
Beijing’s nine-dash line
claim, a U-shaped encirclement found in Chinese maps, illustrates its ownership
of almost the entire sea, including areas that fall within Manila’s territory.
A ruling in favor of the seven issues the Tribunal states it
has immediate jurisdiction over, “would serve to shred China’s claim to its nine dash line because China claims
sovereignty over all the land features and adjacent waters with the nine-dash
line.”
“China
would no longer have a basis to make this claim,” it said.
According to international law, final decisions of the
arbitral tribunal must be complied with although it has no power of
enforcement, Thayer said.
Its decision can not be appealed as well, he added.
Where the Arbitral Tribunal finds in favor of the Philippines at the conclusion of the hearings,
Thayer said it would give the Philippines,
other claimants, the ASEAN and its dialogue partners “a strong legal and moral
case to apply diplomatic and political pressures on China to comply.”
“The Philippines
could legitimately seek outside assistance to protect its rights under
international law,” he said.
But with China’s
construction of at least seven artificial islands in the South China Sea and in
areas within the Philippines’
exclusive economic zone, “Beijing
retains de facto control because it is the stronger power,” Thayer said.
“Might makes ‘right’ and the Chinese apparently will
continue to use coercion and force against the Philippines and other claimants,”
he warned.
However, Thayer said continuing such aggressive acts would
result in the Asian giant being “isolated by the international community
including the major maritime powers.”
http://www.pna.gov.ph/index.php?idn=1&sid=&nid=1&rid=821620
