The Arbitration Case Between the Philippines and China Cannot Settle All of These Disputes

8/15/2019 The Arbitration Case Between the Philippines and China Cannot Settle All of These Disputes

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The arbitration case between the Philippines and China cannot settle all of these

disputes, nor will it since the Philippines has not asked the PCA to do so. The arbitral

tribunal, if it determines it has jurisdiction, will then move on to address the issues of

the legal basis of China’s nine-dash line map and historic rights in outh China ea

under international law, the legal status of maritime features and whether activities

of China damaged the regional marine environment in the region. Those issues are

the essential components of the outh China ea disputes, since the vagueness

underl!ing them arguabl! onl! increases the tension in the disputed area.

The interpretation of article "#", which e$plains the legal definitions of %islands& and

%rocks,& is the prime e$ample of such ambiguit!. According to Professor 'rik

(ranck$, there has alwa!s been difficult! in getting e$act clarit! on this article, since

the language used enables each part! to have their own understanding. )n their

previous law of the sea cases, the )nternational Court of *ustice +)C* and the

)nternational Tribunal for the aw of the ea +)T have also found their own wa!

to not directl! comment on this issue, with the /lack ea case and the case between

/angladesh and 0!anmar being recent e$amples.

The outh China ea arbitration case is the first time a state part! has directl! asked

an international tribunal to decide on this problem. The decision of the PCA on the

case will not onl! potentiall! help reduce the comple$it! of the current disputes and

perhaps conse1uentl! dampen regional tensions, it also contributes to the

development of international law. 2iven this, it would be a mistake to underestimate

the legal importance of this case.

3hat are the conse1uences of China’s approach to the Philippines’ outh China ea case4

The real impacts will arguabl! be felt not in #5"6 or even #5"7, but in the ne$t five or ten

!ears in the future when the time comes for China to settle all of its disputes with its

neighbors. China’s interactions with its neighbor countries have been increasing in both

depth and scope, and disputes of all kinds ma! happen at an! time. 2iven this, it would seem

counterproductive for China to underestimate 8 or activel! undermine 8 international law,

because legal mechanisms ma! be the safest and wisest course /eijing can take to protect its

lawful rights and interests in Asia and the world. een in this light, China’s failure to appearin this case could have negative impacts not onl! in the outh China ea but also in other

areas. ther countries ma! also adopt the same attitude toward /eijing in cases that it

initiates in the future, to cite just one e$ample.

This would be unwise. China’s decision to ignore international law risks upsetting her

peaceful rise, which could bring about reputational risks and financial problems. Consider

how China’s attitude would look to member states that are part of the new Asian

)nfrastructure )nvestment /ank +A))/ or the ne /elt, ne 9oad initiative. These countries

would have reason to be concerned about the how these institutions would be governed since

China, despite being a part! to international agreements, is attempting to weasel its wa! out

of an! compulsor! dispute settlement mechanism. That suggests that laws and institutions in

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China’s e!es are merel! a tool to obtain power, rather than an instrument to peacefull!

manage conflicts of interest between states.

Also making negotiations difficult is an "absolutist political position taken by some claimants who insist

that their own claims are 'indisputable' and represent territory—however distant from their shores,"

Russel said, without directly citing China.

e said such claims include assertions that the territorial waters were "entrusted to them by

ancestors" and vows never to relin!uish "one inch."

if the arbitral tribunal finds it has urisdiction under the #nited $ations Convention on the %aw of the

&ea #$C%(&) over the *hilippines' claims and proceeds deliberating on the merits of the case, its

potential ruling can legally bind parties to the row.

e e+plained that the tribunal may decide on whether China's ninedash line claim is consistent with

the #$C%(& or that the maritime features have their own e+clusive economic -ones and continental

shelves.

he ruling will address "the scope of the overlapping maritime claims / and hopefully the points of

friction / would be significantly reduced," Russel said.

0espite this, issues on sovereignty and boundary would remain unresolved, he said.

The United States Department of State issues a Limits in the Seas report on

China’s Nine-Dash Line claim. In the report, the State Department examines

three dierent possile rationales for China’s Nine-Dash Line claim and examinesthe le!alit" of each under UNCL#S and customar" international la$. In its

examination of the le!alit" of a historic $aters claim, the report notes that

numerous claimants in the South China Sea participate in acti%ities that

demonstrate that there is not an &eecti%e' or &continuous exercise' of Chinese

so%erei!nt" in the re!ion.

In an inter%ie$ $ith China Dail", Director-(eneral of the Department of )oundar"

and #cean *airs +r. #u"an! uin! reiterates that China has &indisputale

so%erei!nt"' o%er the disputed territor" $ith the hilippines, and all island

construction is $ithin Chinese territor" and is unrelated to the aritration case.

#n the /rst da" of hearin!s efore the *ritral Triunal, hilippine Secretar" of

0orei!n *airs *lert del 1osario outlines the hilippines’ !eneral case a!ainst

China, and places stron! emphasis on the fact that the hilippines reco!ni2es

that the Triunal cannot rule on issues of so%erei!nt", and is instead see3in! an

outcome that reects China’s claim to the nine-dash line and &historic ri!hts.'

Sec. del 1osario !oes on to underline ho$ past attempts at ilateral ne!otiations

et$een China and the hilippines ha%e failed to resol%e the maritime disputes,

causin! the hilippines to ha%e no choice ut to initiate the aritration case.

The second da" of hearin!s focuses on en%ironmental and /shin! issues in theSouth China Sea. Durin! his statements efore the triunal, Secretar" of 0orei!n

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*airs *lert del 1osario sa"s 4China has irre%ersil" dama!ed the re!ional

marine en%ironment, in reach of UNCL#S, " its destruction of coral reefs in the

South China Sea, includin! areas $ithin the hilippines’ 556, " its destructi%e

and ha2ardous /shin! practices, and " its har%estin! of endan!ered species.4

Its claim to o$nership of 78 percent of the South China Sea isclearl" preposterous. To sa" it’s ased on histor" is lau!hale.

9istor": ;a" ac3 to , it sa"s. I $as ali%e then? that’s current

e%ents.

The claim that its ri!ht is incontestale is as asurd and t$o-faced

as e%er"thin! else it’s sa"in!. The claim is ein! contested@"

the hilippines, )runei, Aietnam, +ala"sia and Tai$an. If China

trul" elie%es it o$ns all this area, it $ould pro%e so in

international court. That it refuses to do so is, in itself, admission

that it 3no$s it has no le!itimate claim.

The lar!e le%els of trade and in%estment create a realit" that

leaders can’t i!nore no matter ho$ much the"’d $ish to. )ut then,

if all of them did ta3e a stron! stand, $hat could China do: It

couldn’t cut trade $ith all? it needs them, too, particularl" as

China’s econom" and ad%anta!es are ein! $hittled do$n. So a

stron!er !roup of leaders in *sia $ould e helpful.

It proal" $on’t lead to $ar, ut that can’t e ruled out. ;hat it

can lead to is annexation. *s 1ussia has sho$n in U3raine, it can

ta3e $hat it $ants, and the $orld $on’t stop it. Sanctions, "es,

ut "ou can sur%i%e sanctions and there’s a limit.

But ultimately, the most desirable outcome is for China to stop its constructionactivities in the South China Sea and agree that nobody owns those islands and

jointly explore the possible wealth of the area and share it if any is found, whileleaving the seas and all air space open to free, unhampered travel.

It’s time for China to become a responsible member of the internationalcommunity, not the bullying pariah it’s headed to becoming.1riefly, these two developments are, first and foremost, the ruling issued last hursday, (ctober 23, at

the ague in the $etherlands by the 4nternational Arbitration tribunal. he ruling said that it can take

on the case between China and the *hilippines over disputed territory in the &outh China &ea, in the

process overruling obections from 1eiing that the arbitration body has no authority to hear the case.

he ruling says it has the authority and the urisdiction.

At this stage, no words could be more reassuring for our contention and petition that China5s massive

territorial claims in the disputed waters do not conform with the 6372 #$ Convention on the %aw of

the &ea #nclos) and should be declared invalid. 4t reflects favorably on our other assertion that some

Chineseoccupied reefs and shoals do not generate, or create a claim to, territorial waters.


4/9

he second positive development is the news coming from 8ashington, 0C, that Chinese *resident

9i :inping5s refusal to back down over his country5s islandbuilding campaign in disputed waters has

hardened #& *resident 1arack (bama5s attitude toward 1eiing.

he plan is to send American warships to within 62 nautical miles, or about 22 km, of China5s artificial

islands. #nder international law, a country5s territorial waters e+tend 62 nautical miles from its shore.

he maneuver would tell 1eiing and its neighbors that the #& does not recogni-e Chinese

sovereignty over the area.

(bama5s decision has been welcomed in okyo, ;anila and other Asian capitals. $evertheless, the

mission carries risks< should the Chinese military try to stop the American ships, it could trigger the

outbreak of conflict, which neither side wants.

he reclaimed islets by China should not been there in the first place,, if the tenant in malacanang ust

fight for our rights by ust stationing small contingent of wooden small crafts armed to the teeth with a

*hilippine $avy &eal and if they were outgunned surely we will create to much attention in the world.

his will mark China5s as the villain. herefore, the #. &. will surely be shamed if they will not come for

aide militarily or not for the simple reasons as Ally they are not reliable. (ur ;0 says anycommission vessel if attack the #.&. is automatically oblige to retaliate.

)ut the Triunal reected China’s ar!uments sa"in! that &China’s

non-appearance in these proceedin!s does not depri%e the

Triunal of urisdiction,' and &the Triunal held that the hilippines

had sou!ht to ne!otiate $ith China and B international la$ does

not reuire a State to continue ne!otiations $hen it concludes

that the possiilit" of a ne!otiated solution has een exhausted.'

------

&ou need to ha%e land efore "ou can ha%e ri!hts to the sea. It’s

as simple as that.ou cannot ust ha%e ri!hts to the sea $ithout

o$nin! land,' former Solicitor (eneral 0rancis ardele2a said in a

forum at the Uni%ersit" of the hilippines EUF La$ Center in G8


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schedule further hearin!s &to present oral ar!uments and ans$er

uestions on the merits of the hilippines’ claims and an"

remainin! issues deferred from the urisdictional phase.'

---

5he &/C*0S states three different types of maritime features that allow for thewaters surrounding a country to be claimed as part of its territory.

5he first are 1Islands! defined as 1a naturally formed area of land, surrounded bywater and above water at high tide,! $ardele%a said.

Islands, such as *u%on, entitles the country that owns it to a -+ nautical mile(approximately ++ 6ilometers) territorial sea from the coastline with which it has

full sovereignty. 7 country can exclude foreign entities from its territorial sea.

5he island is also entitled to a + nm (approximately 89 6m) exclusive economic

%one (334), which gives the country the sole right to exploit the resources within itsuch as fish and also mineral and oil reserves, if any.

5he second are 1roc6s or reefs! that are mostly below water but have roc6y protrusions above water during high tide. 5he important point

under &/C*0S states that a maritime feature is a roc6 if 1it cannot sustain humanhabitation or economic life on its own,! $ardele%a said.

Such mostly submerged features are entitled to only a -+ nm territorial sea andno 334. 3xamples of such are Bajo de :asinloc, also 6nown as 'anatag shoal or

Scarborough shoal, which lies -+ nm off the coast of 4ambales province.

5he shoal is a submerged coral reef with a roc6y protrusion that is three metersabove the water during high tide. It cannot be classified as an island because it

cannot sustain economic activity or humans on its own, $ardele%a said.

5he third type of maritime features called 1low tide elevation! are submerged

roc6s and reefs that are not visible above water. 5his type of maritime feature is notentitled to any territorial sea or 334.

1ead moreH httpH!loalnation.inuirer.net77JK7unclos-

explained-$h"-chinas-claims-in-south-china-sea-are-

in%alidix22Mrr%)sSo

0ollo$ usH Oinuirerdotnet on T$itter P inuirerdotnet on 0aceoo3

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&ou don’t ha%e to e a roc3et scientist, the Qnine-dash lineR claim

%iolates UNCL#S. The most that China can claim should onl" e

G88 nm outside of 9ainan,' ardele2a said.


explained-$h"-chinas-claims-in-south-china-sea-are-

in%alidix22MrrL*tDo


5he other four are roc6s or reefs that are, at most, entitled to only -+ nm. 5hese areScarborough shoal, -+ nm from *u%on, $ohnson reef -;

(nm from 'alawan), Cuarteron reef (+nm from 'alawan) and #iery Cross reef(+ nine2dash line is invalid. Itviolates &/C*0S. 5he four reefs that are below water all the time are entitled to

no rights and the four are roc6s which would only have -+ nauticalmiles,! $ardele%a said.


explained-$h"-chinas-claims-in-south-china-sea-are-in%alidix22MrrL5#ea


5?3 'hilippines government’s continued refusal to hold bilateral tal6s with China1will force the superpower to ta6e a more hardline position in the @est 'hilippine

Sea dispute,! Senator #erdinand 1Bongbong! :arcos $r. said on @ednesday.

1China opened the door and we shut it. 5he Chinese said let’s tal6 and we snubbed

them. It’s li6e the 'hilippine government itself is encouraging China to ta6e andmaintain an unbending stance on the issue,! :arcos said, reacting to China’s

reported offer to hold a dialogue on the @est 'hilippine Sea dispute.

?e said the 'hilippines will not lose anything by accepting the Chinese invitation.

1So tal6, and tell themA we are not happy with what you are doing and we do not

agree with what you are doing. But the next thing you say isA how do we fix this!said :arcos, vice chairman of the Senate committee on foreign relations.

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?e said rejecting China’s offer would limit the government’s strategic options tostop China from antagoni%ing not only the 'hilippines, but all the other claimant2

countries in the @est 'hilippine Sea.

1@e should not be snobbish. I can’t see any reason at all why we are not tal6ing to

China. 0n the contrary, there are more than enough obvious reasons why weshould tal6 to superpower China,! the senator said.

:arcos ac6nowledged that with China’s own geo2political interests and its concernover the presence of the 7mericans in the area, holding bilateral tal6s between

:anila and Beijing 1is not going to be easy.!

1@e’re strategically important to any great power in 7sia2'acific, but we have to

play that role even2handedly. @e have to stop thin6ing in terms of 6a6ampi 6o ang

Chinese, 6a6ampi 6o ang ano. 7ng 6a6ampi mo lang 'ilipino,! he said.

1@hat is the national interest, what is good for the 'hilippines, that’s all that wehave to be thin6ing about,! he further said.

:arcos said there are three ways to resolve the disputeA by war, adjudication, or

multilateralDbilateral agreements.

1@e do not want war. 7rbitration is not one that is going to be recogni%ed by the

Chinese. So it has to be negotiations,! he said.

In pushing for negotiations, :arcos cited the so2called 1Cod @ars! or the dispute

over rich fishing grounds between the &nited ingdom and Spain in the early ;s.?e pointed out that at the height of the tensions, war ships even rammed fishing

boats.

1In the end, what did they do 5hey came to a bilateral agreement to share and

now they are wor6ing on that basis,! he said.

1ead moreH httpH!loalnation.inuirer.netJ7marcos-ph-

refusal-of-chinas-oer-for-tal3s-a-ad-mo%eix22MrrJ;J88


For Del Rosario, UNCLOS provisions "allow the weak to challenge the

powerful on an equal footing, confident in the conviction that principles

http://globalnation.inquirer.net/125769/marcos-ph-refusal-of-chinas-offer-for-talks-a-bad-move#ixzz3rrK6W600http://globalnation.inquirer.net/125769/marcos-ph-refusal-of-chinas-offer-for-talks-a-bad-move#ixzz3rrK6W600http://ec.tynt.com/b/rw?id=bSAw-mF-0r4Q-4acwqm_6r&u=inquirerdotnethttp://ec.tynt.com/b/rf?id=bSAw-mF-0r4Q-4acwqm_6r&u=inquirerdotnethttp://www.rappler.com/nation/98769-philippines-china-hague-opening-statement-full-texthttp://www.rappler.com/nation/98769-philippines-china-hague-opening-statement-full-texthttp://globalnation.inquirer.net/125769/marcos-ph-refusal-of-chinas-offer-for-talks-a-bad-move#ixzz3rrK6W600http://globalnation.inquirer.net/125769/marcos-ph-refusal-of-chinas-offer-for-talks-a-bad-move#ixzz3rrK6W600http://ec.tynt.com/b/rw?id=bSAw-mF-0r4Q-4acwqm_6r&u=inquirerdotnethttp://ec.tynt.com/b/rf?id=bSAw-mF-0r4Q-4acwqm_6r&u=inquirerdotnethttp://www.rappler.com/nation/98769-philippines-china-hague-opening-statement-full-texthttp://www.rappler.com/nation/98769-philippines-china-hague-opening-statement-full-text


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trump power; that law triumphs over force; and that right prevails over

might."

:otabl!, the Court has rejected an argument in China’s position paper that the %#55# China;

A'A:


9/9

et=s see if China has the skill to behave like a civili>ed nation.

Despite their status in the international community, China acts as if there is

No UNCLOS, there is No UN Arbitration and there is No UN at all. They don't

ant to be a part of a !"AC"#UL dispute settlement so ho ill you e$pect

China to render its commitment as one of the fi%e leaders of UN S"CU&T(

COUNCL)

he *hilippine government on hursday said no nation in the world is recogni-ing the validity of China's territorial

claims over the maority of the &outh China &ea as shown by the recent statements of #& senators and

4ndonesian *resident :oko 8idodo.

4t reaffirms the belief that no country in the world recogni-es that the 3dash line is a valid claim on the part of

China," he said.

0el Rosario noted the *hilippines pursued arbitration "to preserve a valued friendship" with China, without

diminishing its deal to pursue a legally binding code of conduct in the &outh China &ea.

"4nternational law is the great e!uali-er...8e are in the right and right is might," he said. With Reuters

ressure not onl" from the hilippines ut from the entire $orld

=he urisdiction over waters does not have connection to history. 4t must observe the #$C%(&.>

0utton stressed that using history to e+plain sovereignty erodes the rules of the #$C%(&. ?@B 4t is

understood that China ratified the #$C%(& in 633. ?@6B
https://en.wikipedia.org/wiki/Nine-dash_line#cite_note-research-40https://en.wikipedia.org/wiki/Nine-dash_line#cite_note-41https://en.wikipedia.org/wiki/Nine-dash_line#cite_note-research-40https://en.wikipedia.org/wiki/Nine-dash_line#cite_note-41

Documents

The Arbitration Case Between the Philippines and China Cannot Settle All of These Disputes