IN a matter of weeks, so go the reports, the Permanent Court of Arbitration (PCA) of the United Nations will render its judgment on the complaint brought to it by the Philippines against China in their dispute on the West Philippine Sea. Speculations are rife that we will win the case. China, over the past period, has been in some frenzy of strengthening ties with allies, which observers see as Chinese maneuver to generate support for its defiance of its anticipated loss in the PCA proceedings. But lest we be misguided in our own expectations on the case, it is best that we ascertain exactly what the PCA will decide on.
As reflected in its Award of Jurisdiction and Admissibility, which the PCA issued Oct. 2015, the Philippines is seeking from the arbitral body relief which we quote at length as follows:
“On the basis of the facts and law set forth in this Memorial, the Philippines respectfully requests the Tribunal to adjudge and declare that:
1) China’s maritime entitlements in the South China Sea, like those of the Philippines, may not extend beyond those permitted by the United Nations Convention on the Law of the Sea (“UNCLOS” or the “Convention”);
2) China’s claims to sovereign rights and jurisdiction, and to “historic rights,” with respect to the maritime areas of the South China Sea encompassed by the so-called “nine-dash line” are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under UNCLOS;
3) Scarborough Shoal generates no entitlement to an exclusive economic zone or continental shelf;
4) Mischief Reef, Second Thomas Shoal and Subi Reef are low-tide elevations that do not
generate entitlement to a territorial sea, exclusive economic zone or continental shelf, and are not features that are capable of appropriation by occupation or otherwise;
5) Mischief Reef and Second Thomas Shoal are part of the exclusive economic zone and continental shelf of the Philippines;
6) Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide elevations that do not generate entitlement to a territorial sea, exclusive economic zone or continental shelf, but their low water line may be used to determine the baseline from which the breadth of the territorial sea of Namyit and Sin Cowe, respectively, is measured;
(Notification and Amended Statement of Claim, pp. 17-19. Memorial, para. 7.157.34 Award on Jurisdiction and Admissibility 29 October 2015)
7) Johnson Reef, Cuarteron Reef and Fiery Cross Reef generate no entitlement to an exclusive economic zone or continental shelf;
8) China has unlawfully interfered with the enjoyment and exercise of the sovereign rights of the Philippines with respect to the living and non-living resources of its exclusive economic zone and continental shelf;
9) China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the exclusive economic zone of the Philippines;
10) China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Scarborough Shoal;
11) China has violated its obligations under the Convention to protect and preserve the marine environment at Scarborough Shoal and Second Thomas Shoal;
12) China’s occupation and construction activities on Mischief Reef
(a) violate the provisions of the Convention concerning artificial islands, installations and structures;
(b) violate China’s duties to protect and preserve the marine environment under the Convention; and
(c) constitute unlawful acts of attempted appropriation in violation of the Convention;
13) China has breached its obligations under the Convention by operating its law enforcement vessels in a dangerous manner causing serious risk of collision to Philippine vessels navigating in the vicinity of Scarborough Shoal;
14) Since the commencement of this arbitration in January 2013, China has unlawfully aggravated and extended the dispute by, among other things:
(a) interfering with the Philippines’ rights of navigation in the waters at, and adjacent to, Second Thomas Shoal;
(b) preventing the rotation and resupply of Philippine personnel stationed at Second Thomas Shoal; and
(c) endangering the health and well being of Philippine personnel stationed at Second Thomas Shoal; and
15) China shall desist from further unlawful claims and activities.”
The PCA award notes early on that the Philippines recognizes the arbitration sought as not one of delimiting boundaries. It says, “Conscious that the Convention (the United Nations Convention on the Law of the Sea or UNCLOS) is not concerned with territorial disputes, the Philippines has stated at all stages of this arbitration that it is not asking this Tribunal to rule on the territorial sovereignty aspect of its disputes with China. Similarly, conscious that in 2006 China made a declaration, in accordance with the Convention, to exclude maritime boundary delimitations from its acceptance of compulsory dispute settlement procedures under the Convention, the Philippines has stated that it is not asking this Tribunal to delimit any maritime boundaries.”
What the Philippines is asking is the application of various provisions of the UNCLOS in order to deter China from its occupation of disputed reefs. But in so doing, it has no other course than to assert its sovereign rights as a nation.
Thus it has come to pass that China’s reclamation binge on the Spratlys has been depicted as intrusions into Philippine territory. War hysteria against China, evidently abetted by the Aquino administration that has always been dutifully toeing the US policy line against China’s aggressiveness in the South China Sea, was fanned at one period not just over the country but worldwide as well. Particularly standouts were the anti-Chinese protest rallies sponsored by Loida Nicolas Lewis, reputedly the richest Filipino outside of the Philippines, a campaign contributor of both Obama and Aquino, who reportedly had been eyeing oil explorations over the country’s western reefs.
But military actions are taboo as means of settling disputes under UNCLOS, and when the situation threatened to degenerate into such, the Philippines appeared to be the more circumspect by avoiding the Scarborough Shoal standoff and opted to bring the matter to the United Nations Permanent Court of Arbitration.
Sovereignty, whether that of China or that of the Philippines, is not at issue in the PCA proceedings. But both countries are signatories to the UNCLOS and, therefore, are bound by its rules and decisions. It turns out that the Philippines’ sovereign rights as a nation overlap with China’s claim of sovereignty over the disputed waters on the basis of its so-called “nine-dash-line.” This makes the case for the arbitral body a very delicate one.
How can the PCA grant the relief sought for by the Philippines without ruling on the sovereignty claim of China on the basis of the “nine-dash-line”?
(To be continued)