From the Philippine News Agency (Jul 8):
Statement of Philippine Foreign Affairs Secretary Albert del Rosario before the Permanent Court of Arbitration in The Hague, Netherlands
"Mr. President, distinguished Members of the Tribunal,
it is a great honor to respectfully appear before you on behalf of my country,
the Republic of the Philippines.
It is indeed a special privilege to do so in a case that has such importance to
all Filipinos and -- if I may add -- to the rule of law in international
relations."
"Mr. President, the Philippines has long placed its
faith in the rules and institutions that the international community has
created to regulate relations among States. We are proud to have been a
founding member of the United Nations, and an active participant in that
indispensable institution."
"Its organs, coupled with the power of international
law, serve as the great equalizer among States, allowing countries, such as my
own, to stand on an equal footing with wealthier, more powerful States."
"No where is this more true, Mr. President, than with
respect to the progressive development of the law of the sea, which culminated
in the adoption of the Law of the Sea Convention in 1982. That instrument,
which has rightly been called a 'Constitution for the Oceans,' counts among its
most important achievements the establishment of clear rules regarding the
peaceful use of the seas, freedom of navigation, protection of the maritime
environment and, perhaps most importantly, clearly defined limits on the
maritime areas in which States are entitled to exercise sovereign rights and
jurisdiction."
"These are all matters of central significance to the Philippines.
Indeed, given our lengthy coastline, our status as an archipelagic state, and
our seafaring tradition, the rules codified in the law of the sea have always
had particular importance for the Philippines. The Philippines is
justifiably proud of the fact that it signed the Convention on the day it was
opened for signature, on 10 December 1982, and was one of the first States to
submit its instrument of ratification, which it did on 8 May 1984."
"The Philippines
has respected and implemented its rights and obligations under the Convention in
good faith. This can be seen in the amendment of our national legislation to
bring the Philippines’ maritime claims into compliance with the Convention, by
converting our prior straight baselines into archipelagic baselines in
conformity with Articles 46 and 47, and by providing that the maritime zones of
the Kalayaan Island Group and Scarborough Shoal in the South China Sea would be
consistent with Article 121."
"The Philippines
took these important steps, Mr. President, because we understand, and accept,
that compliance with the rules of the Convention is required of all States
Parties."
"I mentioned a moment ago the equalizing power of
international law. Perhaps no provisions of the Convention are as vital to
achieving this critical objective than Part XV. It is these dispute resolution
provisions that 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."
"Mr. President, allow me to respectfully make it clear:
in submitting this case, the Philippines
is NOT asking the Tribunal to rule on the territorial sovereignty aspect of its
disputes with China."
"We are here because we wish to clarify our maritime
entitlements in the South China Sea, a
question over which the Tribunal has jurisdiction. This is a matter that is
most important not only to the Philippines,
but also to all coastal States that border the South China
Sea, and even to all the States Parties to UNCLOS. It is a dispute
that goes to the very heart of UNCLOS itself. Our very able counsel will have
much more to say about this legal dispute over the interpretation of the
Convention during the course of these oral hearings. But in my humble layman’s
view, the central legal dispute in this case can be expressed as follows:"
"For the Philippines, the maritime
entitlements of coastal States -- to a territorial sea, exclusive economic zone
and continental shelf, and the rights and obligations of the States Parties
within these respective zones -- are established, defined and limited by the
express terms of the Convention. Those express terms do not allow for -- in
fact they preclude -- claims to broader entitlements, or sovereign rights, or
jurisdiction, over maritime areas beyond the limits of the EEZ or continental
shelf. In particular, the Convention does not recognize, or permit the exercise
of, so called 'historic rights' in areas beyond the limits of the maritime
zones that are recognized or established by UNCLOS."
"Sadly, China
disputes this, Mr. President, in both word and deed. It claims that it is
entitled to exercise sovereign rights and jurisdiction, including the exclusive
right to the resources of the sea and seabed, far beyond the limits established
by the Convention, based on so-called 'historic rights' to these areas. Whether
these alleged “historic rights” extend to the limits generally established by
China’s so-called 'nine dash line', as appears to be China’s claim, or whether
they encompass a greater or a narrower portion of the South China Sea, the
indisputable fact, and the central element of the legal dispute between the
Parties, is that China has asserted a claim of 'historic rights' to vast areas
of the sea and seabed that lie far beyond the limits of its EEZ and continental
shelf entitlements under the Convention."
"In fact, China has done much more, Mr.
President, than to simply claim these alleged 'historic rights'. It has acted
forcefully to assert them, by exploiting the living and non-living resources in
the areas beyond the UNCLOS limits while forcibly preventing other coastal
States, including the Philippines, from exploiting the resources in the same
areas -- even though the areas lie well within 200 M of the Philippines’ coast
and, in many cases, hundreds of miles beyond any EEZ or continental shelf that
China could plausibly claim under the Convention."
"The legal dispute between the Philippines and China
over China’s claim to and exercise of alleged 'historic rights' is a matter
falling under the Convention, and particularly Part XV, regardless of whether
China is claiming that 'historic rights' are recognized under the Convention,
or allowable under the Convention because they are not precluded by it. China has made
both arguments in its public statements. But it makes no difference for
purposes of the characterization of this dispute as one calling for the
interpretation or application of the Convention. The question raised by the
conflicting positions of the Philippines
and China
boils down to this: Are maritime entitlements to be governed strictly by UNCLOS,
thus precluding claims of maritime entitlements based on 'historic rights'? Or
does the UNCLOS allow a State to claim entitlements based on 'historic' or
other rights even beyond those provided for in the Convention itself?"
"As our counsel will explain, Mr. President, any
recognition of such 'historic rights' conflicts with the very character of
UNCLOS and its express provisions concerning the maritime entitlements of
coastal States. This calls indisputably for the proper interpretation of the
fundamental nature of the Convention."
"China’s
assertion and exercise of its alleged rights in areas beyond its entitlements
under UNCLOS have created significant uncertainty and instability in our
relations with China
and in the broader region. In this respect, I note the presence here today of
representatives of Vietnam, Malaysia, Indonesia,
Thailand and Japan to
observe these critical proceedings."
"Mr. President, China has claimed 'historic rights' in
areas that are beyond 200 M from its mainland coasts, or any land feature over
which it claims sovereignty, and within 200 M of the coasts of the Philippines’
main islands, and exploited the resources in these areas while preventing the
Philippines from doing so. It has therefore, in the Philippines’ view, breached the
Convention by violating Philippine sovereign rights and jurisdiction. China has
pursued its activities in these disputed maritime areas with overwhelming
force. The Philippines
can only counter by invoking international law. That is why it is of fundamental
importance to the Philippines, and we would submit, for the rule of law in
general, for the Tribunal to decide where and to what limit China has maritime
entitlements in the South China Sea; where and to what limit the Philippines
has maritime entitlements; where and to what extent the Parties’ respective
entitlements overlap and where they do not. None of this requires or even
invites the Tribunal to make any determinations on questions of land
sovereignty, or delimitation of maritime boundaries."
"The Philippines
understands that the jurisdiction of this tribunal convened under UNCLOS is
limited to questions that concern the law of the sea. With this in mind, we
have taken great care to place before you only claims that arise directly under
the Convention. As counsel for the Philippines will discuss at length
in the coming days, we have, in essence, presented five principal claims. They
are:"
"-- 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;"
"-- Second, that the so-called nine dash line has no
basis whatsoever under international law insofar as it purports to define the
limits of China’s claim to 'historic rights';"
"-- 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 12M,
and some generate no entitlements at all. China’s recent massive reclamation
activities cannot lawfully change the original nature and character of these
features;"
"-- Fourth, that China has breached the Convention by
interfering with the Philippines’ exercise of its sovereign rights and
jurisdiction; and"
-- Fifth, that 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."
"Mr. President, the Philippines is committed to
resolving its disputes with China peacefully and in accordance with
international law. For over two decades, we diligently pursued that objective
bilaterally, regionally and multilaterally. I will not here take this Tribunal
through the Philippines’ painstaking and exhaustive diplomatic efforts, which
are set out in detail in our written pleadings. I will, however, mention a few
representative examples, if I may."
"As far back as August 1995, after China seized and
built structures on Mischief Reef -- a low-tide elevation located 126 nautical
miles from the Philippine island of Palawan and more than 600 nautical miles
from the closest point on China’s Hainan Island -- the Philippines sought to
address China’s violation of its maritime rights diplomatically. During those
exchanges, the Philippines and China agreed that the dispute should be resolved
in accordance with UNCLOS. As the then Chinese Vice Minister for Foreign
Affairs, Mr. Tang Jiaxuan, stated two years later during bilateral
negotiations, China and the Philippines should 'approach the disputes on the
basis of international law, including the United Nations Convention on the Law
of the Sea, particularly its provisions on the maritime regimes like the
exclusive economic zone'."
"The mutual acceptance that the Philippines’ disputes
with China must be resolved in accordance with UNCLOS was also reflected in a
Joint Communiqué issued in July 1998 upon completion of bilateral discussions
between my predecessor, Foreign Secretary Domingo Siazon, and China’s Foreign
Minister Tang Jiaxuan. The Communiqué recorded that, and I quote, 'The two
sides exchanged views on the question of the South China Sea and reaffirmed
their commitment that the relevant disputes shall be settled peacefully in
accordance with the established principles of international law, including the
United Nations Convention on the Law of the Sea' (End of quote)."
"Regrettably, neither the bilateral exchanges I have mentioned,
nor any of the great many subsequent exchanges, proved capable of resolving the
impasse caused by China’s intransigent insistence that China alone possesses
maritime rights in virtually the entirety of the South China Sea, and that the
Philippines must recognize and accept China’s sovereignty before meaningful
discussion of other issues could take place."
"The Philippines has also been persistent in seeking a
diplomatic solution under the auspices of ASEAN. This has proven no more
successful than our bilateral efforts. In fact, China has insisted that ASEAN
cannot be used to resolve any territorial or maritime disputes concerning the
South China Sea, and that such issues can only be dealt with in bilateral
negotiations. ASEAN and China have yet to conclude a binding code of conduct in
the South China Sea. The most that has been achieved was the issuance, in 2002,
of a 'Declaration on the Conduct of Parties in the South China Sea.' Although
that document recorded the parties’ commitment to work toward the 'eventual'
establishment of a code of conduct in the South China Sea, China’s
intransigence in the 13 years of subsequent multilateral negotiations has made
that goal nearly unattainable."
"Nonetheless, Mr. President, the 2002 DOC is
significant in at least one important respect: the ASEAN Member States and
China undertook therein to 'resolve their territorial and jurisdictional
disputes by peaceful means, without resorting to the threat or use of force,
through friendly consultations and negotiations by sovereign states directly
concerned, in accordance with universally recognized principles of
international law, including the 1982 UN Convention on the Law of the Sea.' In
so doing, the Declaration encouraged those States, should they prove unable to resolve
their disputes through consultations or negotiations, to do so in accordance
with the Convention, which includes, of course, the dispute resolution
procedures under Part XV."
"Mr. President, over the years, China’s positions and
behavior have become progressively more aggressive and disconcerting. Outside
observers have referred to this as China’s 'salami-slicing' strategy: that is,
taking little steps over time, none of which individually is enough to provoke
a crisis. Chinese military officials themselves have referred to this as its
'cabbage' strategy: peeling one layer off at a time. When these small steps are
taken together, however, they reflect China’s efforts to slowly consolidate de
facto control throughout the South China Sea."
"Two more recent incremental steps caused the
Philippines to conclude that it had no alternative other than to invoke
compulsory procedures entailing a binding decision. The first was China’s
transmittal of its nine-dash line claim to the United Nations in 2009, after
which, it prevented the Philippines from carrying out long-standing oil and gas
development projects in areas that are well inside the Philippines’ 200 M EEZ
and continental shelf."
"Secondly, in 2012, China forcibly expelled Philippine
fishermen from the maritime areas around Scarborough Shoal where the Filipino
fishermen have for generations been fishing without so much as a protest from
China."
"These and other acts by China caused the Philippines
to conclude that continued diplomatic efforts, whether bilateral or
multilateral, would be futile, and that the only way to resolve our maritime
disputes was to commence the present arbitration."
"Subsequent events, including China’s acceleration of
massive land reclamation activities, which it has undertaken -- and continues
to undertake -- in blatant disregard of the Philippines rights’ in its EEZ and
continental shelf, and at tremendous cost to the marine environment in
violation of UNCLOS -- only serve to reconfirm the need for judicial
intervention."
"Mr. President, I would like to conclude by conveying
my country’s deepest appreciation for the considerable time and attention you
have devoted to these proceedings. The case before you is of the utmost
importance to the Philippines, to the region, and to the world. In our view, it
is also of utmost significance to the integrity of the Convention, and to the
very fabric of the 'legal order for the seas and oceans' that the international
community so painstakingly crafted over many years."
"If China can defy the limits placed by the Convention
on its maritime entitlements in the South China Sea, and disregard the
entitlements of the Philippines under the Convention, then what value is there
in the Convention for small States Parties as regards their bigger, more powerful
and better armed neighbors? Can the Philippines not invoke Part XV to challenge
China’s activities as violations of its obligations and the Philippines’
rights, considering that the Philippines’ claims call for a mere interpretation
and application of the Convention and do not fall within any of the
jurisdictional exclusions of Articles 297 or 298?"
"Mr. President, if the Philippines cannot invoke Part
XV, then what remains of the obligation regarding judicial settlement of
disputes that was such a key element of the comprehensive package that made the
Convention acceptable to all State Parties?"
"We understand, Mr. President, that in the exercise of
its collective wisdom and judgment, this body has decided to bifurcate the
proceedings and to limit these current hearings to the issue of jurisdiction.
In this respect, we shall explain in full how our case falls squarely within
the jurisdiction of this Tribunal, to the end that justice and fair play may
prevail and the Tribunal would recognize its jurisdiction over the case and
allow the Philippines to present the actual merits of our position."
"In the Philippines’ view, it is not just the
Philippines’ claims against China that rest in your capable hands. Mr.
President, it is the spirit of UNCLOS itself. That is why, we submit, these
proceedings have attracted so much interest and attention. We call on the
Tribunal to kindly uphold the Convention and enable the rule of law to
prevail."
"I humbly thank you, Mr. President, and distinguished
Members of the Tribunal. May I now ask that Philippines’ counsel, Mr. Paul
Reichler, be called to the podium."
http://www.pna.gov.ph/index.php?idn=1&sid=&nid=1&rid=780671
