Manila: Integrity of UNCLOS at stake
THE HAGUE: The Philippines has appealed to an international tribunal to declare China’s claims to most of the South China Sea illegal, warning that the integrity of United Nations’ maritime laws is at stake.
Oral arguments in The Hague started on Tuesday evening (Philippine time), July 7, and will end on Monday, July 13.
Manila in early 2013 submitted its case against Beijing to The Hague-based Permanent Court of Arbitration (PCA), a 117-state body set up in 1899 to rule on disputes between countries, and private parties including companies.
It hopes to convince a five-member panel of judges and law academics at a closed-door meeting that the PCA has jurisdiction to hear the case. China refuses to participate in the proceedings.
If the PCA decides it has jurisdiction, the merits of Manila’s case could be heard in the succeeding round of hearings.
In opening comments to the five-member Permanent Court of Arbitration in The Hague on Tuesday, Foreign Secretary Albert del Rosario said the Philippines had sought judicial intervention because China’s behavior had become increasingly “aggressive” and negotiations had proved futile.
Del Rosario added that the UN’s Convention on the Law of the Sea (Unclos), which the Philippines and China have both ratified, should be used to resolve their bitter territorial dispute.
“The case before you is of the utmost importance to the Philippines, to the region and to the world,” del Rosario told the tribunal.
“In our view, it is also of utmost significance to the integrity of the convention, and to the very fabric of the legal order of the seas and oceans.”
China insists that it has sovereign rights to nearly all of the South China Sea, a strategically vital waterway with shipping lanes through which about a third of all the world’s traded oil passes.
Its claim, based on ancient Chinese maps, reaches close to the coasts of its southern neighbors.
The Philippines, Vietnam, Malaysia, Brunei Darussalam and Taiwan also have claims to parts of the sea, which have for decades made it a potential military flashpoint.
Tensions had risen sharply in recent years as a rising China has sought to stake its claims more assertively.
After a stand-off between Chinese ships and the weak Philippine Navy and Philippine Coast Guard in 2012, China took control of a rich fishing ground called Panatag (Scarborough) Shoal, located 124 nautical miles off Zambales province, and is within the Philippines’ exclusive economic zone.
China has also undertaken giant reclamation activities that have raised fears it will use artificial islands to build new military outposts close to the Philippines and other claimants.
It has rejected all criticisms over its actions, also insisting that it has undisputed sovereign rights to the sea (See related story).
Del Rosario, however, told the tribunal in The Hague that China’s argument of claiming the sea based on “historic rights” was without foundation.
He said Beijing’s “historic rights” are not recognized under Unclos–a treaty signed by over 160 countries, including China and the Philippines, defining nations’ rights to use the world’s oceans.
“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,” del Rosario added.
“Any recognition of such historic rights conflicts with the very character of Unclos and its express provisions concerning the maritime entitlements of coastal States,” he also told the arbitral tribunal.
“The so-called 9-dash line [based on an old map used by China]has no basis whatsoever under international law,” he said.
Del Rosario added that China’s recent move to “act forcefully” in the disputed areas based on these “historic rights” has affected the stability of the region.
“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,” he said.
Filipino diplomats have worked since 1995–after China took over the Panganiban (Mischief) Reef–to resolve the disputes diplomatically.
They have negotiated bilaterally with China, and even sought assistance from the Association of Southeast Asian Nations (Asean).
All of these efforts came to nothing, del Rosario said.
“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 was further convinced that it has no other way to resolving the dispute but to initiate compulsory proceedings when, first, China transmitted its 9-dash line claim and stopped Manila’s gas exploration activities in the region, and second, when it “forcibly” kicked out Filipino fishermen from Panatag Shoal in 2012.
“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.”
The arbitration case is of “utmost importance” to the Philippines, the region and the world, del Rosario said.
He pointed out that the case speaks of the “integrity” of the convention and the “legal order of the seas” that the world community has crafted for years.
“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.”
Day 2 of proceedings
The Philippines will continue to present its arguments on the second day of the arbitral proceedings on Wednesday.
A statement from the Department of Foreign Affairs (DFA) said the Philippines will further explain how this case “did not fall under the specific Unclos exemptions which would preclude the tribunal from hearing the case.”
Although China ratified Unclos in 1996, China claims exemption from compulsory process based on a 2006 letter that it submitted to the convention, rejecting mandatory arbitration provisions of the treaty.
It also argued in its position paper released in December last year that the Philippines has no legal basis to drag China to court.
Aside from proving the panel’s jurisdiction over the arbitration case, the Philippine delegation in The Hague “will present strong arguments regarding the strength of the Philippines’ environmental and fishing claims against China.”
Studies claimed that China’s massive reclamation projectsin the West Philippine Sea (South China Sea) has caused irreparable damage to the marine ecosystem, as well as to fishing resources.
“The Philippine legal team is expected to summarize the Philippines’ case and reply to questions to be raised by the tribunal before the oral arguments conclude on July 13,” the DFA said.
The Philippine team began presenting the arguments for the Philippine position “with emphasis on the tribunal’s proper jurisdiction to hear and decide the case.”
The PCA’s arbitral tribunal is to issue a ruling, called an “award,” after the hearing wraps up on Friday, but it was unknown how long it would take and whether it would be made public.
The panel’s ruling is binding on both parties, according to the PCA’s arbitration rules published on its website.
The panel’s decision also cannot be appealed and must be carried out without delay, said Aaron Matta, a senior researcher at The Hague Institute for Global Justice.
But “the fact that China is not collaborating with the proceedings, casts doubts regarding the future enforcement of the court’s eventual award,” Matta said.
Based at The Hague’s Peace Palace, the PCA is not under obligation to make its rulings public, but could do so with the consent of all parties or where it has a legal duty to do so.
Malacañang also on Wednesday vouched for the competence of the American and British lawyers whom the Philippine government hired to help argue its case before the PCA.
Its spokesman Edwin Lacierda said these foreign lawyers already have experience in facing the arbitral tribunal.
“These are lawyers who have international reputation appearing before the tribunal. We can rely on them. They’ve been with us from the start, since we filed the case,” he added.
Among the foreign lawyers tapped to represent the Philippines in the arbitration proceedings were Paul S. Reichler, Lawrence H. Martin, Bernard H. Oxman, Philippe Sands and Alan Boyle.
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Beijing: Arbitration a breach of Code of Conduct
BY BERNICE CAMILLE V. BAUZON REPORTER
BEIJING on Tuesday reiterated its stand that arbitral proceedings initiated by the Philippines before a United Nations tribunal in The Hague is a breach of the Declaration on the Code of Conduct (DOC) in the West Philippine Sea (South China Sea).
“China has, on many occasions, expounded its position of neither accepting nor participating in the arbitral proceedings unilaterally initiated by the Philippines,” Chinese Foreign Ministry spokesman Hua Chunying said in a briefing a day after the start of court hearings of the five- member Permanent Court of Arbitration in The Netherlands
Like past statements, Hua said the proceedings is “in breach of the agreement that has been repeatedly reaffirmed with China as well as the Philippines’ undertakings in the Declaration on the Conduct of Parties in the South China Sea.”
The DOC is a 2002 non-binding edict signed by China and the Association of Southeast Asian Nations (Asean) to reduce political tensions and prevent claimant-countries China, the Philippines, Vietnam, Malaysia, Taiwan and Brunei Darussalam from taking aggressive action in the contested waters.
“China opposes any moves by the Philippines to initiate and push forward the arbitral proceedings,” Hua said.
She added that China’s position on the proceedings “has been clearly stated in the 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” released in December last year.
In the position paper, China questioned the five-member tribunal’s jurisdiction over maritime issues in the region.
It also reiterated its “indisputable sovereignty” over the resource-rich features of the region.
Oral arguments on the tribunal’s jurisdiction over the case began on July 7 and will last until July 13 in The Hague, The Netherlands.
The Chinese Ambassador to the Philippines is optimistic in the future of the bilateral relations between China and the Philippines despite the ongoing territorial dispute in the South China Sea.
“I see its greater potential in the future despite the difficulties we have,” Ambassador Zhao Jianhua said, highlighting the two countries’ good relationship in the last 40 years.
Zhao admitted that the territorial dispute has been problematic for the China-Philippine relations.
“We do have our problems, difficulties and differences over some of the islands and reefs in the South China Sea. But this requires calm and reasonable diplomatic measures to deal with,” he said.
He added that China is willing to settle disputes with other neighboring countries as well, and that “the door for bilateral negotiation is open and will remain open” to ensure the peace over the South China Sea.
WITH JACQUELINE BOUVIER ARIAS