Philippines v. China: The Endgame as Prelude

Jay L. Batongbacal, PhD, /APPFI.PH

With the conclusion of the oral arguments on the merits phase last month, the arbitration initiated by the Philippines against China finally moves into the endgame. Although China was given one final opportunity until 01 January 2016 to submit comments on the arguments and evidence presented thus far, it is not expected to do so. The Tribunal has announced commencement of deliberations and that it will decide the case next year.

The procedural victory that the Philippines scored in the preliminary jurisdictional phase affirms the relevance of the United Nations Convention on the Law of the Sea to the South China Sea disputes especially with respect to its maritime aspects. The tribunal has determined that the 2002 Declaration of Conduct and similar regional agreements are not obstacles to the resort to Annex VII arbitration, and that to do so there is no need for prior negotiations on every specific issue brought for arbitration. Unilateral resort to arbitration on an issue that has not been resolved by the parties despite years of negotiations is not considered an abuse of rights in international law. China’s insistence that such unilateral resort contravenes the coastal States’ right to choose the means by which it should settle disputes has been dispensed with.

The finding of jurisdiction also validates the Philippine approach of separating the maritime disputes that emerge on the marine waters from the sovereignty disputes over land features. This dispenses with China’s position that sovereignty over the islands in the SCS is at the core of the disputes, and that the SCS disputes cannot be resolved without also addressing the claims to the islands themselves. Issues of maritime entitlements (i.e., whether or not features are entitled to maritime zones) are indeed separate and distinct from issues of delimitation of overlapping entitlements, and it is possible to decide disputed claims that do not involve overlapping entitlements. Moreover, the disputes over China’s claim to the largest entitlement, that of “historic rights” to the SCS as represented by the infamous nine dashed lines map, have been squarely identified as an issue of interpretation and application of UNCLOS, and therefore fully open to resolution by arbitration.

In all, seven Philippine submissions have been adjudged to be fully within the jurisdiction of the tribunal. Four of these claims involve a determination of only the maritime entitlements of the features currently occupied by China; two concern the legality of Chinese measures against Philippine ships near Bajo de Masinloc (Scarborough) and Ayungin (Second Thomas) shoals; and one deals with the legality of Chinese resource exploitation in and around them. The jurisdictional ruling over seven other claims have been reserved for later determination with the merits. Of these, two concern the nature and legality of China’s claims in the SCS, represented by its nine dashed line map; one is on the question of whether Panganiban (Mischief) and Ayungin shoals are part of the Philippine exclusive economic zone and continental shelf (EEZ/CS); three involve the legality of Chinese activities in the Philippine EEZ/CS, and the last deals with the legality of China’s activities around Ayungin shoal. The tribunal also sought clarification on one final claim, which the Philippines later described during the arguments on the merits as a claim for China to comply with its duties to protect and preserve the marine environment in the SCS and to exercise exercise rights and freedoms in the SCS with due regard to those of the Philippines, all in accordance with UNCLOS. Read more…



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