Professor H. Harry L. Roque, Jr.

Director, Institute of International Legal Studies, UP Law Center Professor, Department of International Law and Human Rights, Philippine Judicial Academy Governing Council, Asian Society of International Law

22 January 2013, the Philippines commenced arbitration proceedings against China under the compulsory and mandatory dispute settlement procedure of UNCLOS (Annex VII)

In its Claim, the Philippines asked the arbitral tribunal to rule on three basic issues:
1. The validity of Chinas nine-dash lines; 2. Low tide elevations where China has built permanent structures should be declared as forming part of the Philippine Continental shelf; 3.That the waters outside the 12 nautical miles surrounding the Panatag Island (Scarbourough shoal) should be declared as part of the Philippines EEZ

The Philippines has since characterized the presence of Chinese vessels in the area as an invasion and filed the arbitral proceedings.
China has not responded to the Philippine notification and has not appointed its arbitrator to the proceedings. It has declared that it will not participate in the proceedings.

Foreign Ministry spokesman, February 2012: Neither China nor any other country lays claim to the entire South China Sea Letter to UN Secretary-General from Chinas UN Mission, May 2009: China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map)

It is the basic principle of the international maritime law that land dominates the sea. UNCLOS allows coastal states to claim a 200-nautical-mile EEZ, but coastal states have no right to harm the inherent territory and sovereignty of other countries
Any attempt to use UNCLOS to change the territorial sovereignty of a country is a violation of the principles of international law, including UNCLOS The maritime jurisdiction of the Philippines should not infringe upon the territorial sovereignty of China over the Huangyan Island

Philippine view: China as a party to the UNCLOS is subject to Art 286. Countries that ratified UNCLOS are deemed to have abandoned claims to maritime territory not provided by Convention

Chinese view (Judge Xue Hanqin): Chinas declaration is an opt out of the dispute settlement procedure of UNCLOS. The 40 countries that ratified UNCLOS 1 but registered declarations are not deemed to have waived all their historical claims to maritime territory

Dispute is about conflicting claims to territory and hence, UNCLOS is inapplicable (Bolstered by 2009 Philippines Baselines Law )
Its nine-dash lines are maritime zones generated by its land territory. Huangyang includes Macclesfield bank and Scarborough which it views as an island that spans 202 nautical miles.

Hudge Xue: since the end of World War II, the international community, has acknowledged the existence of Chinas ninedash lines with no country ever questioning it until oil resources were discovered in the area. International law does not provide for clear rules on historic claims to territory

1. disputes involving delimitations 2. disputes concerning military activities, including military activities by government vessels and aircraft engaged in noncommercial service, 3. disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction

Since maritime zones generated by land territory, validity of 9 dash lines entail delimitation of conflicting land and maritime boundaries with Phl.

Philippines has attempted to reach agreement since 1987 to no avail. Hence, arbitral claim is ripe for adjudication Chinese

Chinese View (Judge Xue) arbitration is a violation of a substantive obligation of the parties to negotiate under the Code of Conduct on the SCS between ASEAN and China

Moreover, UNCLOS require PhP and China to delimit bilaterally through negotiations and agreement at the first instance.

WON state parties declarations are in the nature of opt out of the compulsory dispute settlement procedure of UNCLOS
WON state parties to UNCLOS have renounced all historic claims to maritime territory not provided by UNCLOS

WON Chinas view that nine-dash lines are generated by land territories will prima facie divest arbitral body of its jurisdiction or whether tribunal can rule on the validity of such a characterization in ruling on its own competence.

Cardinal Principle is that Tribunal is sole judge of its own competence. China disadvantaged by not arguing preliminary objections. It has until March, 2014 to do so
Judge XUE: no country can fail to see the design of the Philippine It mixed up jurisdiction with the merits.