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#InquirerSeven FAQ about the Philippines vs. China arbitration case

/ 08:00 AM July 12, 2016
Philippine delegation arbitration court maritime dispute south china sea west philippine sea

The Philippine delegation before the International Tribunal for the Law of the Sea during the hearing of the case against China. Photo: Permanent Court of Arbitration.

After more than three years since the Philippines’ arbitration case against China was filed, the Arbitral Tribunal has reached a historic decision on the decades-old maritime dispute over the West Philippine Sea (South China Sea).

The historic case aims to invalidate China’s claim of “historic rights” over the South China Sea through its “nine-dash line” claim that overlaps with the Philippines 200-nautical mile exclusive economic zone (EEZ).

China has refused to participate in the proceedings saying it does not recognize the jurisdiction of the tribunal and has reiterated that it will not abide by any decision of the court.

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BACKSTORY: China: We are the victims in dispute; won’t heed UN decision

Given the comprehensiveness and significance of the case, INQUIRER.net enumerates in this listicle the #InquirerSeven frequently asked questions about the Republic of the Philippines v. The People’s Republic of China arbitration case, to further explain the details:

1. Why did the Philippines file a case against China?

Philippine delegation the hague maritime dispute Philippines China arbitral tribunal

NOVEMBER 27, 2015
Day 3 of the hearings on the merits of Philippines’ case against China over a territorial dispute in the South China Sea at The Arbitral Tribunal of the Permanent Court of Arbitration in the Hague.
PHOTO FROM THE FACEBOOK ACCOUNT OF ABIGAIL VALTE

The 2012 Scarborough Shoal standoff was one of the factors that prompted the Philippines to file a case against China. Tensions between the two countries escalated when Chinese surveillance ships prevented Philippine authorities from apprehending Chinese vessels found poaching endangered Philippine marine species at the shoal.

The dispute over maritime features in the South China Sea has been ongoing for decades prior and involved other Southeast Asian countries such as Vietnam, Malaysia, Indonesia.

“The Philippines has exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of its maritime dispute with China. On numerous occasions, dating back to 1995, the Philippines has been exchanging views with China to peacefully settle these disputes. To this day, a solution is still elusive,” the Department of Foreign Affairs (DFA) said in a statement on January 22, 2013 when it first initiated arbitration proceedings.

“We hope that the Arbitral Proceedings shall bring this dispute to a durable solution,” it said.

Philippines asked the Arbitration Tribunal to invalidate China’s “nine-dash line” claim because it does not conform to the United Nations Convention on the Law of the Sea (UNCLOS), an international treaty signed and ratified by both China and the Philippines. It is regarded as the constitution of the seas.

BACKSTORY: Philippine, Chinese naval vessels in Scarborough Shoal standoff

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2. What does “arbitration” mean and what will it achieve?

Arbitral tribunal Judges philippines vs china south china sea west philippine sea spratly islands

The members of the Arbitral Tribunal in Philippines vs. China case (from left): Judge Jean-Pierre Cot, Judge Stanislaw Pawlak, Judge Thomas A. Mensah (president), Judge Rüdiger Wolfrum, Prof. Alfred H. A. Soons. PHOTO FROM THE PERMANENT COURT OF ARBITRATION WEBSITE

Arbitration refers to a process in which a party submits a “dispute” to an unbiased, independent third party. Its main goal is to settle and conclude the disputes presented.

The Permanent Court of Arbitration is an intergovernmental organization established in 1899 that designates arbitral tribunals to resolve disputes between and among nations. It is based in The Hague, Netherlands, and currently presides over the arbitration case.

Philippines brought the case before the tribunal to dispute China’s claim of “indisputable sovereignty” over almost the entire South China sea through its “nine-dash line” claim.

The five arbitrators assigned to the case are Judge Thomas A. Mensah (President), Judge Jean-Pierre Cot, Judge Stanislaw Pawlak, Professor Alfred H. Soons, and Judge Rüdiger Wolfrum.

READ: Philippines hails Hague court ruling to take up arbitration case vs China

3. What is Unclos and what is the EEZ?

south china sea claims west philippine sea maritime dispute unclos arbitration

Graphic on contested claims in the South China Sea. China claims nearly the entire sea through its “nine-dash line” which overlaps with the 200-nautical mile exclusive economic zone (EEZ) of several countries.

The United Nations Convention on the Law of the Sea (Unclos) is an international treaty that defines the limits of a nation’s maritime sovereignty claims. This convention was ratified by both the Philippines and China. Under its provisions, areas within 200 nm from the country’s baselines would be part of the EEZ.

Unclos states three basic maritime features:

  • Islands under the sovereignty of a country are entitled to a 12 nm (approximately 22 kilometers) territorial sea and a 200 nm (approximately 370 km) exclusive economic zone (EEZ). The state may exclude foreign entities within its territorial sea and has sole right to exploit resources found within the EEZ.
  • Rocks or reefs are maritime features that are mostly below water but have protrusions that remain above water during high tide. Such features are entitled to only a 12 nm territorial sea and no EEZ. Examples of such are Bajo de Masinloc, also known as Panatag shoal or Scarborough shoal, which lies 120 nm off the coast of Zambales province.
  • “Low-tide elevations” are fully submerged rocks or reefs. These are not entitled to any territorial sea or EEZ. In the past several years, China has conducted massive land reclamation projects on several submerged reefs in the Spratly group of islands turning them into artificial islands and establishing military installations.

Unclos states that artificial islands “do not possess the status of islands” and are not allowed to have a “territorial sea.” It also states that only the coastal state has the right to build artificial islands in its EEZ.

READ: Why the Unclos is important to the West Philippine Sea dispute

4. What is so important about the South China Sea?

In this April 20, 2015, file photo, Armed Forces of the Philippines Chief of Staff Gen. Gregorio Pio Catapang, left, points to reveal recent images of China's reclamation activities being done at the disputed islands in the South China Sea during a news conference at Camp Aguinaldo at suburban Quezon City. The Philippines expressed alarm Thursday, May 7, over what it said were escalating Chinese efforts to drive off Filipino aircraft from a disputed South China Sea island garrisoned by Manila, in dangerous confrontations. AP PHOTO/BULLIT MARQUEZ

In this April 20, 2015, file photo, Armed Forces of the Philippines Chief of Staff Gen. Gregorio Pio Catapang, left, points to reveal recent images of China’s reclamation activities being done at the disputed islands in the South China Sea. AP PHOTO/BULLIT MARQUEZ

The South China Sea contains three groups of maritime features—the Spratly and Paracel groups of Islands and Scarborough Shoal. All countries involved in the maritime dispute recognize that the sea is rich in resources such as fish and other marine life, and reserves of oil.

The sea is also a major shipping lane in Southeast Asia prompting many countries worldwide to call for restraint so as not to disrupt the vital trade route. The 3.5 million square km sea is also strategic as it provides access to nearly the entire Southeast Asian region.

READ: Endangered wildlife collateral damage in Spratlys row

5. What are the bases of the Philippines’ and China’s claims?

Albert-del-rosario-speech-before-UN-Arbitral-Tribunal

Former Foreign Secretary Albert del Rosario listed the Philippines’ five main claims during his speech delivered in front of the UN tribunal last July 7, 2015:

  • China’s “historic rights” claim violates Article 57 of the Unclos, containing the provisions of the 200 nautical miles EEZ;
  • China’s “nine-dash line” has no basis under international law; rather, it only emphasizes the limitations presented by their “historic rights”;
  • Some parts of the South China Sea are “rocks” that therefore have no EEZ. In accordance with Article 121, Paragraph 3 of the Unclos, China cannot claim these maritime features as most of these are reefs and low-tide elevations;
  • “China has breached the Convention by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction”; and
  • Destructive fishing practices done by China brought about permanent damage on coral reefs and marine life, including some areas within the Philippines’ EEZ.

READ: UNCLOS explained: Why China’s claims in South China Sea are invalid

In 2002, the Association of Southeast Asian Nations (Asean) and China issued a Declaration on the Conduct (DOC) of Parties in the South China Sea to ensure “peaceful settlements” of disputes. In line with this, China asserted that bilateral consultations would be the best solution in settling the rift.

Del Rosario, however, countered that despite the Philippines’ “diplomatic efforts” in resolving this issue with China through the provisions of the DOC, the latter still continued its “cabbage” strategy in claiming majority of the South China Sea—taking small steps at a time such as enforcing its “nine-dash” claim in 2009 and “forcefully exploiting” living and nonliving resources from the islands and the Scarborough Shoal. The Philippines then concluded that submitting an arbitration case to the UN, under international law, would be the most appropriate way to resolve this dispute.

FULL TEXT: DFA chief Del Rosario’s speech at UN tribunal

6. Are there other countries involved in the arbitration case?

BAND OF ASEAN BROTHERS   Linking arms to signify unity and cooperation among member countries of the Association of Southeast Asian Nations, its leaders (from left) from the Philippines, Benigno Aquino III; Indonesia, Joko Widodo; Cambodia, Hun Sen; Brunei, Hassanal Bolkiah; Laos, Choummaly Sayasone; Malaysia, Najib Razak; Vietnam, Nguyen Tan Dung; Singapore,  Lee Hsien Loong;  Thailand, Prayut Chan-o-cha; and Burma,Thein Sein, pose for the traditional group photo at the opening ceremony of the 27th Asean Summit in Kuala Lumpur  on Saturday.   MALACAÑANG PHOTO BUREAU

BAND OF ASEAN BROTHERS Linking arms to signify unity and cooperation among member countries of the Association of Southeast Asian Nations, its leaders (from left) from the Philippines, Benigno Aquino III; Indonesia, Joko Widodo; Cambodia, Hun Sen; Brunei, Hassanal Bolkiah; Laos, Choummaly Sayasone; Malaysia, Najib Razak; Vietnam, Nguyen Tan Dung; Singapore, Lee Hsien Loong; Thailand, Prayut Chan-o-cha; and Burma,Thein Sein, pose for the traditional group photo at the opening ceremony of the 27th Asean Summit in Kuala Lumpur on Saturday. MALACAÑANG PHOTO BUREAU

The territorial disputes in the South China Sea began decades ago when Japan decided to renounce its claims on the Spratly Islands. The Philippines, Brunei and Malaysia all argue that either all or some parts of the Spratlys are part of their respective EEZs; Vietnam says they have already occupied both the Spratly and Paracel islands centuries ago; and China claims that they have “historic rights” over the Islands since their ancestors were the first to discover and name them.

Two of these claimant countries attended as observers during the hearings of the tribunal, namely Vietnam and Malaysia. Also part of the observer team were Indonesia, Thailand and Japan.

READ: Asean foreign ministers voice concerns on South China Sea

7. What will happen after the arbitral tribunal issues a decision?

Philippine delegation to the United Nations Arbitral Tribunal in The Hague for South China Sea case

The Philippine delegation to the United Nations Arbitral Tribunal in The Hague. File Photo from the Department of Foreign Affairs

Once the tribunal issues a decision on July 12, the case could go either way: The tribunal could consider China’s “historic rights” and “nine-dash line” claims, or they could agree with the Philippines’ claim that some maritime features being claimed by China are not entitled to the 200 nautical mile EEZ.

READ: Decision on PH-China sea row out on July 12 – tribunal

Whatever the decision may be, both the Philippines and China cannot make an appeal. According to the UN Conference on Trade and Development, “awards” or decisions are “final and binding, and there is no right of appeal.”

The Philippines claimed an initial victory on October 29, 2015 when it won the first round of the proceedings after the tribunal decided it had jurisdiction over the case. The tribunal at The Hague, Netherlands concluded that they had “every right” to hear the case, thus thrashing China’s “strongest argument.”

BACKSTORY: Philippines scores against China in UN arbitration

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TAGS: arbitral tribunal, arbitration, China, ITLOS, Maritime Dispute, Philippines, Scarborough Shoal, South China Sea, Spratly Islands, The Hague, tribunal decision, Unclos, West Philippine Sea
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