Why the Intl Arbitral Tribunal decided against China’s arguments


MANILA: On October 29, 2015, the Permanent Court of Arbitration has ruled that it has jurisdiction on the Philippines’ case questioning the legality of China’s enormous claims in the South China Sea.

The decision, which the Philippine government and its ally, the United States, have welcomed, came more than three months after Manila’s legal team and top diplomats presented its arguments in The Hague from July 7 to 13 to convince the court to assume authority over the case.

With this ruling, the Tribunal said Manila’s case will proceed to the next phase — the hearing on merits. It said it expects to hand down a final ruling by 2016.

This ruling by the court is a legal setback for China. For the first time the court debunks legal arguments that China uses to justify its massive territorial claim in the resource-rich waters, where Vietnam, Malaysia, Brunei, and Taiwan -– regarded by Beijing as its renegade province -– have overlapping claims.

South China Sea analyst Professor Carl Thayer of the University of New South Wales at the Australian Defense Force Academy hailed the court ruling “a victory in the first instance for the Philippines.”

“The Arbitral Tribunal has answered in the affirmative to two important legal questions -– its competence to hear the case and the fact that the Philippines had made a case in international law,” Thayer said.

The legal process involved two parts: jurisdiction and admissibility of the Philippine complaint and hearing on the merits of the case.

This arbitration, initiated by the Philippines in January 2013, is limited to determining the role of “historic rights” and the source of maritime entitlements in the South China Sea, according to a press statement issued by the Tribunal in The Hague.

The arbitration court can not rule on the ownership of the contested features. Its mandate is limited to the interpretation or application of the 1982 United Nations Convention on the Law of Sea on the 15 points that the Philippines raised against China, called “submissions” in arbitration parlance.

The Philippines’ case is anchored on the 1982 convention which allows coastal states the right to manage, explore and exploit areas within its 200-nautical mile exclusive economic zone.

It also tackles the status of certain maritime features in the South China Sea (which the Philippines calls the West Philippine 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 UNCLOS.

The Philippines said China’s assertion of having “indisputable” and “historical” claims that extends beyond what is allowed by the UNCLOS infringes on the country’s maritime jurisdiction and prevents it from exercising its right under the convention.

China did not participate in the arbitration, saying it does not recognize the Philippines’ case, calling it baseless and lacking in legal merit.

It has repeatedly stated that “it will neither accept nor participate in the arbitration unilaterally initiated by the Philippines.”

China also insisted that the tribunal is not the proper legal venue to hear Manila’s case.
According to China, the essence of Manila’s case is territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the court’s mandate.

The Philippines has emphasized that it is not requesting the Tribunal to decide the question of sovereignty over maritime features in the South China Sea that are claimed by both Manila and Beijing nor has it asked the court to delimit any maritime boundary between them.

China also insisted that the territorial rifts must be resolved bilaterally, specifically through the 2002 Declaration on the Conduct of Parties in the South China Sea or DOC, a non-binding non-aggression pact signed by China and the 10-member Association of South East Asian Nations (Asean), of which the Philippines and other claimants like Vietnam, Malaysia and Brunei are members.

In its 147-page decision, the tribunal rejected China’s position that it (the tribunal) does not have authority to rule on the case.

It also rejected the argument that the dispute is actually about the delimitation of a maritime boundary between the countries involved and therefore excluded from the Tribunal’s jurisdiction.

On the contrary, the Tribunal has held that each of the Philippines’ 15 submissions reflect that the disputes between the two states concern the interpretation or application of the UN Convention.

It likewise debunked China’s argument that the 2002 accord “constitutes an agreement to resolve disputes relating to the South China Sea exclusively through negotiation.”

According to the Tribunal, the China–Asean Declaration is “a political agreement that was not intended to be legally binding and was therefore not relevant to the provisions in the Convention that give priority to the resolution of disputes through any means agreed between the Parties.”

It added that certain other agreements and joint statements by China and the Philippines “do not preclude the Philippines from seeking to resolve its dispute with China through the Convention.”

Further, the court said the Philippines has met the Convention’s requirement that it has exhausted all options and avenues of negotiations with China before seeking compulsory arbitration.

While it has ruled to proceed with the case, the tribunal explained that its jurisdiction initially covers seven out of 15 submissions by Manila against China.

These submissions concern Chinese occupation of Philippine-claimed features in the South China Sea.

The court, meanwhile, decided to defer for “later consideration” its jurisdiction ruling on eight other issues, including the one questioning the validity of China’s so-called nine-dash line claim, saying a decision will be made “in conjunction” with the hearing on the merits of the case.

Beijing’s nine-dash line claim, a U-shaped encirclement found in Chinese maps, illustrates its ownership of almost the entire sea, including areas that fall within Manila’s territory.

A ruling in favor of the seven issues the Tribunal states it has immediate jurisdiction over, “would serve to shred China’s claim to its nine dash line because China claims sovereignty over all the land features and adjacent waters with the nine-dash line.”
“China would no longer have a basis to make this claim,” it said.

According to international law, final decisions of the Arbitral Tribunal must be complied
with although it has no power of enforcement, Thayer said.

Its decision can not be appealed as well, he added.

Where the Arbitral Tribunal finds in favor of the Philippines at the conclusion of the hearings, Thayer said it would give the Philippines, other claimants, the Asean and its dialogue partners “a strong legal and moral case to apply diplomatic and political pressures on China to comply.”

“The Philippines could legitimately seek outside assistance to protect its rights under international law,” he said.

But with China’s construction of at least seven artificial islands in the South China Sea and in areas within the Philippines’ exclusive economic zone, “Beijing retains de facto control because it is the stronger power,” Thayer said.

“Might makes ‘right’ and the Chinese apparently will continue to use coercion and force against the Philippines and other claimants,” he warned.

However, Thayer said continuing such aggressive acts would result in the Asian giant being “isolated by the international community including the major maritime powers.” (PNA)


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