THE Philippines on Friday hailed the decision of a United Nations arbitral tribunal in The Hague to take cognizance of its case against China as it virtually won the first round of its legal battle against the Asian superpower.
Lawyers representing the country are getting ready for the next round of proceedings that are set for the end of November.
Solicitor-General Florin Hilbay told reporters on Friday that presentation of merits against China’s occupation of areas in the South China Sea (West Philippine Sea) is tentatively scheduled for November 24 to 30.
After the presentation, the Permanent Court of Arbitration in The Hague in The Netherlands is expected to make a ruling within the first quarter of 2016.
Hilbay said the tribunal’s decision is a step toward a peaceful resolution of a territorial dispute between Manila and Beijing in contested waters of the South China Sea.
“The decision represents a significant step forward in the Philippines’ quest for a peaceful, impartial resolution of the dispute between the parties and the clarification of their rights under Unclos [United Nations Convention on the Law of the Sea],” Hilbay, the country’s registered legal representative in the proceedings, said.
“The elimination of preliminary objections to the exercise of the tribunal’s jurisdiction opens the way for the presentation of the merits of the Philippines’ substantive claims,” he noted in a statement.
Malacañang also on Friday welcomed the tribunal’s 151-page decision to issue an Award on Jurisdiction and Admissibility on hearing the Philippines’ case against China.
“We welcome the decision of the arbitral tribunal on jurisdiction, allowing the Philippines to present its claims on the merits,” Communications Secretary Hermino Coloma Jr. said in a text message.
“Our people can be assured that those representing our country have been continuously preparing for this,” Palace deputy spokesman Abigail Valte said.
“We welcome the decision of the arbitral tribunal that it has jurisdiction over our case,” Charles Jose, Department of Foreign Affairs spokesman, said.
“We look forward to the tribunal’s further hearing on the merits of the case,” he added.
The United Nations-sanctioned tribunal ruled on Thursday that it has the power to hear a case brought by the Philippines over disputed islands in the South China Sea.
Manila has insisted that the Unclos, which the Philippines and China have both ratified, should be used to resolve the bitter territorial row over isolated reefs and islets, which has triggered growing international alarm.
But China has refused to participate in the proceedings, arguing the Permanent Court of Arbitration–which is more than a century-old and based in The Hague–had no jurisdiction over the case.
“Reviewing the claims submitted by the Philippines, the tribunal has rejected the argument” by China that the “dispute is actually about sovereignty over the islands in the South China Sea and therefore beyond the tribunal’s jurisdiction,” the court said in a statement.
Instead, it ruled that the case reflects “disputes between the two states concerning the interpretation or application of the convention”–something that falls within its “remit.”
China insists it has sovereign rights to nearly all of the South China Sea, a strategic waterway through which about a third of all the world’s traded oil passes.
The disputed waters–claimed in part by Vietnam, Malaysia, the Philippines, Taiwan and Brunei Darussalam–have also become the stage for a tussle for regional dominance between Beijing and Washington, the world’s two largest economic and military powers.
After a stand-off between Chinese ships and the Philippine Coast Guard in 2012, China took control of Panatag Shoal or Bajo de Masinloc (internationally known as Scarborough Shoal), a rich fishing ground off the coast of Zambales that is within the Philippines’ exclusive economic zone.
China has also undertaken giant reclamation activities, raising fears it will use artificial islands to build new military outposts close to the Philippines and other claimants.
The ruling said the arbitration “concerns the role of ‘historic rights’ and the source of maritime entitlements in the South China Sea, 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 convention.”
It clarified that it did not decide on merits of the parties’ dispute but held “that both the Philippines and China are parties to the convention and bound by its provisions on the settlement of disputes.”
The ruling rejected China’s “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines” in December 2014, which said that the tribunal has no jurisdiction over the dispute that refers to sovereignty and maritime boundaries.
The Philippines did not argue the case of who owns the disputed maritime features in the region but focused its arguments on three matters concerning its relationship with China in the West Philippine Sea.
First, the Philippines, based on the Unclos, seeks a ruling on China’s “historic rights” that paved way for its encompassing nine-dash line claim in the region.
The Philippines used the Unclos to argue against China’s nine-dash line, which refers to the u-shaped line found on ancient Chinese maps that supposedly prove Chinese sovereignty over almost 90 percent of the West Philippine Sea–a rich fishing source and a vital maritime route where $5 trillion of annual global trade passed by.
It also said that China’s claims sit within the Philippines 200-nautical mile exclusive economic zone (EEZ).
Second, the Philippines wants the tribunal to rule on characterization of islands, rocks, low tide elevations and submerged banks under the convention.
The Philippines is challenging the characterization of maritime features in the region, asking the tribunal to declare some features in the disputed areas as “rocks,” not islands.
Under the Unclos, rocks do not generate maritime entitlements beyond 12 miles.
In particular, the Philippines said Scarborough Shoal, Mischief Reef, Second Thomas Shoal, Subi Reef, Gaven Reef, McKennan Reef, Johnson Reef, Cuarteron Reef and Fiery Cross Reef, over all of which China has assumed jurisdiction, are low-tide elevations that generate no entitlement or territorial sea, exclusive economic zone or continental shelf.
The decision said, “The status of these features under the convention may determine the maritime zones they are capable of generating.”
Finally, the Philippines wants a ruling on whether Chinese activities in the region have violated the convention, and the Philippines’ sovereign rights and freedoms.
It also alleged that China’s actions in the region, “through construction and fishing activities,” might have harmed the marine environment.
The tribunal’s decision noted that Beijing has refused to join the proceedings but also said it considered the arguments China presented in its “position paper.”
In the position paper, China argued that the convention does not apply to territorial sovereignty over the maritime features in the region, that both parties agreed to settle the dispute under the 2002 Declaration on the Code of Conduct of Parties in the South China Sea (DOC), that China submitted a 2006 declaration that excludes it from compulsory arbitration and other compulsory dispute settlement procedures concerning maritime delimitation.
But the tribunal said, “Although the convention specifies certain limitations and exceptions to the subject matter of the disputes that may be submitted to compulsory settlement, it does not permit other reservations and a State may not except itself generally from the convention’s mechanism for the resolution of disputes.”
Ruling in 2016
The tribunal—set up in 1899 to resolve international disputes between countries—said on Thursday its ruling did not yet go to the heart of the merits of Manila’s case, which was first filed in 2013.
A new hearing will now be held behind closed doors in The Hague, and a final ruling is not expected until next year.
The tribunal agreed it would take up seven of the 15 submissions made by Manila, in particular whether Scarborough Shoal and low-tide areas like Panganiban (Mischief) Reef can be considered islands, as China contends.
It will also mull whether China has interfered with Philippine fishing activities at Scarborough Shoal.
But the tribunal set aside seven more pointed claims, mainly accusing Beijing of acting unlawfully, to be considered at the next hearing on the actual merits of Manila’s case.
In a July hearing in the Hague, Philippine Foreign Secretary Albert del Rosario warned the integrity of UN maritime laws was at stake.
China’s behavior had become increasingly “aggressive” and negotiations had proved futile, del Rosario said.
But the court also on Thursday directed Manila to narrow down the scope of its final request that it should order that “China shall desist from further unlawful claims and activities.”
In Washington, a senior US defense official hailed the tribunal’s decision as victory for international law.
“We of course welcome the decision of the panel. This demonstrates the relevance of international law to the territorial conflicts in the South China Sea,” the defense official said.
“It demonstrates that sovereign claims are not necessarily indisputable and it shows that judging issues like this on the basis of international law and international practice are a viable way at a minimum of managing territorial conflicts, if not resolving them. We strongly welcome the activities of the panel.”
China has said it will not abide by any ruling. But the Philippines hopes a judgement in its favor will pressure China into making concessions.
The tribunal said Thursday’s ruling establishing its competence in the affair had been “unanimous” among the panel of five judges.
And it stressed the ruling “concerns only whether the tribunal has jurisdiction to consider the Philippines’ claims and whether such claims are admissible.”
‘We will not participate’
China will disregard any findings by the UN tribunal, Beijing said also on Friday.
“We will not participate and we will not accept the arbitration,” Vice Foreign Minister Liu Zhenmin told reporters in Beijing.
“The ruling or the result of arbitration will not affect China’s position,” he said.
“It won’t affect China’s sovereignty rights and jurisdiction in the South China Sea, our rights will not be undermined.”
As a veto-wielding permanent member of the UN Security Council, the stance will put Beijing in a difficult diplomatic position if the court rules that it has violated one of the UN’s own statutes.
It said China’s non-participation in the proceedings “does not deprive” the tribunal of jurisdiction.
Article 9, Annex VII of the Unclos provides that the “absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and in law.”
The tribunal said it ensured that China was well-informed of the proceedings, reiterating in several instances that “it remains open to China to participate in the proceedings at any stage.”
At the same time, it made sure that “the Philippines was not disadvantaged by China’s non-participation.”
WITH AFP AND PNA