Philippines v. China, questions & answers, (1)

If you want to get a handle on how the Philippines won its case against  People’s China, consult a recently published monograph that explains everything in 148 questions and answers.  The authors (a father-son lawyers’ tandem ) untangle the intricacies of the UNCLOS ( United Nations Convention on the Law of the Sea) and its annexes that create an Arbitral Tribunal.  In layman’s language, the authors also define legal, geological, historical and maritime terms that give us a clearer picture of this celebrated case.

Not quite a treaty, the UNCLOS  is a legal agreement that promotes international communications,  the peaceful and equitable use of seas and oceans and the protection of marine environments.  Take note that both China and the Philippines signed the UNCLOS in  December 1982.

An Arbitral Tribunal was constituted under Annex VII of the UNCLOS in order to decide on the dispute between the two countries. It is a non-permanent ad hoc body that becomes functus officio (expired mandate) after rendering the arbitral award.  China kept referring to the Permanent Court of Arbitration (PCA) which is not a court with judges, but a Registrar that facilitates arbitration and communications among the concerned parties.

What exactly were the  Philippine demands?–  that the  Tribunal declare as illegal China’s historical claims based on the “ 9-dash line”, that the Spratly Islands and  Scarborough Shoal, both claimed by  China,  are not entitled to an Exclusive Economic Zone (EEZ) nor a continental shelf.  China’s construction of artificial islands and land reclamation that includes seven reefs in the Spratly Islands group are blatantly illegal. Furthermore, we demanded that the Tribunal stop   China from infringing on the Philippines’ rights to navigation, fishing and oil exploration guaranteed by the UNCLOS and bar Chinese fishermen from harvesting endangered species and using fishing methods that endanger the marine environment. In addition,  China must not restrict access to a detachment of Philippine marines stationed at Second Thomas Shoal.

In January 2013, the Philippines submitted a  Notification and Statement of Claim against China to the UNCLOS and an Arbitral Tribunal was formed.  Although China refused to participate in the proceedings, it sent the media a steady flow of statements and position papers articulating its objections. China also sent  Notes Verbale to the Philippines and the PCA. The Arbitral Tribunal ruled that  despite its absence, China “is a party to the arbitration and is bound under International Law by any award rendered by the Tribunal.”

Unlike the Philippines, China never submitted a formal Statement of Claims, so the Arbitral Tribunal had to refer to one of China’s  Position Paper, dated December 7, 2014,  diplomatic notes and statements leaked to the press to determine its position. China contended that the Tribunal had absolutely no jurisdiction over cases that involve territorial sovereignty. Granted that the dispute involved ownership of certain islands in the South China Sea, sovereignty was not the issue and the Philippines carefully avoided the inclusion of the sovereignty in its Notification and Statement of Claim.

In one of its public statements, China argued that the Philippines is prohibited from initiating arbitration because it is a signatory of the China-ASEAN Declaration on the Conduct of Parties in the South China Sea (2002), the Treaty of Amity and Cooperation in Southeast Asia, as well as the Convention on Biological Diversity. However, the  Arbitral Tribunal ruled that all the above are non-binding political agreements that cannot prevent the Philippines from bringing claims to arbitration under the UNCLOS.

China declared historic rights over the South China Sea and insisted that these are beyond the jurisdiction of the Arbitral Tribunal; the latter concluded that China has no legal basis to claim historic rights to resources within its “9-dash line” because of the mere fact that it had made use of some island in the South China Sea does not automatically establish historic rights to the waters and islands beyond its territorial sea. Moreover, explained the authors,  “historic rights are exceptional rights and the exercise of freedoms permitted under International Law cannot give rise to a historic right because it represents the use of what International Law already freely permits. Thus, if a State uses the high seas, one cannot claim it by virtue of historic rights. Historical navigation and fishing beyond the territorial sea, cannot be the basis of the emergence of a historic right…” Obviously, the exercise of such freedoms are already permitted by International Law. The lawyers for the Philippines said that assuming we hypothetically accept China’s “historic rights” to the South China Sea, when it signed the UNCLOS China effectively waived such “historic rights”. (to be continued next week)

(Source : Saul Hofileña, Jr & Daniel Soriano Hofileña, Turmoil at the South China Sea, the Philippines v. China, arbitration and other relevant matters.  Baybayin Press, 2022)