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Arbitration
Arbitration
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 Chinas nine-dash line map and historic rights in South China Sea
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 South China Sea disputes, since the vagueness
underlying them arguably only increases the tension in the disputed area.
The interpretation of article 121, which explains the legal definitions of islands and
rocks, is the prime example of such ambiguity. According to Professor Erik
Franckx, there has always been difficulty in getting exact clarity on this article, since
the language used enables each party to have their own understanding. In their
previous law of the sea cases, the International Court of Justice (ICJ) and the
International Tribunal for the Law of the Sea (ITLOS) have also found their own way
to not directly comment on this issue, with the Black Sea case and the case between
Bangladesh and Myanmar being recent examples.
The South China Sea arbitration case is the first time a state party has directly asked
an international tribunal to decide on this problem. The decision of the PCA on the
case will not only potentially help reduce the complexity of the current disputes and
perhaps consequently dampen regional tensions, it also contributes to the
development of international law. Given this, it would be a mistake to underestimate
the legal importance of this case.
What are the consequences of Chinas approach to the Philippines South China Sea case?
The real impacts will arguably be felt not in 2015 or even 2016, but in the next five or ten
years in the future when the time comes for China to settle all of its disputes with its
neighbors. Chinas interactions with its neighbor countries have been increasing in both
depth and scope, and disputes of all kinds may happen at any time. Given this, it would seem
counterproductive for China to underestimate or actively undermine international law,
because legal mechanisms may be the safest and wisest course Beijing can take to protect its
lawful rights and interests in Asia and the world. Seen in this light, Chinas failure to appear
in this case could have negative impacts not only in the South China Sea but also in other
areas. Other countries may also adopt the same attitude toward Beijing in cases that it
initiates in the future, to cite just one example.
This would be unwise. Chinas decision to ignore international law risks upsetting her
peaceful rise, which could bring about reputational risks and financial problems. Consider
how Chinas attitude would look to member states that are part of the new Asian
Infrastructure Investment Bank (AIIB) or the One Belt, One Road initiative. These countries
would have reason to be concerned about the how these institutions would be governed since
China, despite being a party to international agreements, is attempting to weasel its way out
of any compulsory dispute settlement mechanism. That suggests that laws and institutions in
Chinas eyes are merely a tool to obtain power, rather than an instrument to peacefully
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 territoryhowever distant from their shores,"
Russel said, without directly citing China.
He said such claims include assertions that the territorial waters were "entrusted to them by
ancestors" and vows never to relinquish "one inch."
if the arbitral tribunal finds it has jurisdiction under the United Nations Convention on the Law of the
Sea (UNCLOS) over the Philippines' claims and proceeds deliberating on the merits of the case, its
potential ruling can legally bind parties to the row.
He explained that the tribunal may decide on whether China's nine-dash line claim is consistent with
the UNCLOS or that the maritime features have their own exclusive economic zones and continental
shelves.
The ruling will address "the scope of the overlapping maritime claims and hopefully the points of
friction would be significantly reduced," Russel said.
Despite 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
Chinas Nine-Dash Line claim. In the report, the State Department examines
three different possible rationales for Chinas Nine-Dash Line claim and examines
the legality of each under UNCLOS and customary international law. In its
examination of the legality of a historic waters claim, the report notes that
numerous claimants in the South China Sea participate in activities that
demonstrate that there is not an effective or continuous exercise of Chinese
sovereignty in the region.
In an interview with China Daily, Director-General of the Department of Boundary
and Ocean Affairs Mr. Ouyang Yujing reiterates that China has indisputable
sovereignty over the disputed territory with the Philippines, and all island
construction is within Chinese territory and is unrelated to the arbitration case.
On the first day of hearings before the Arbitral Tribunal, Philippine Secretary of
Foreign Affairs Albert del Rosario outlines the Philippines general case against
China, and places strong emphasis on the fact that the Philippines recognizes
that the Tribunal cannot rule on issues of sovereignty, and is instead seeking an
outcome that rejects Chinas claim to the nine-dash line and historic rights.
Sec. del Rosario goes on to underline how past attempts at bilateral negotiations
between China and the Philippines have failed to resolve the maritime disputes,
causing the Philippines to have no choice but to initiate the arbitration case.
The second day of hearings focuses on environmental and fishing issues in the
South China Sea. During his statements before the tribunal, Secretary of Foreign
Affairs Albert del Rosario says "China has irreversibly damaged the regional
marine environment, in breach of UNCLOS, by its destruction of coral reefs in the
South China Sea, including areas within the Philippines EEZ, by its destructive
and hazardous fishing practices, and by its harvesting of endangered species."
The second positive development is the news coming from Washington, DC, that Chinese President
Xi Jinpings refusal to back down over his countrys island-building campaign in disputed waters has
hardened US President Barack Obamas attitude toward Beijing.
The plan is to send American warships to within 12 nautical miles, or about 22 km, of Chinas artificial
islands. Under international law, a countrys territorial waters extend 12 nautical miles from its shore.
The maneuver would tell Beijing and its neighbors that the US does not recognize Chinese
sovereignty over the area.
Obamas decision has been welcomed in Tokyo, Manila and other Asian capitals. Nevertheless, 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.
The reclaimed islets by China should not been there in the first place,, if the tenant in malacanang just
fight for our rights by just stationing small contingent of wooden small crafts armed to the teeth with a
Philippine Navy Seal and if they were outgunned surely we will create to much attention in the world.
This will mark Chinas as the villain. Therefore, the U. S. will surely be shamed if they will not come for
aide militarily or not for the simple reasons as Ally they are not reliable. Our MDT says any
commission vessel if attack the U.S. is automatically oblige to retaliate.
He said rejecting Chinas offer would limit the governments strategic options to
stop China from antagonizing not only the Philippines, but all the other claimantcountries in the West Philippine Sea.
We should not be snobbish. I cant see any reason at all why we are not talking to
China. On the contrary, there are more than enough obvious reasons why we
should talk to superpower China, the senator said.
Marcos acknowledged that with Chinas own geo-political interests and its concern
over the presence of the Americans in the area, holding bilateral talks between
Manila and Beijing is not going to be easy.
Were strategically important to any great power in Asia-Pacific, but we have to
play that role even-handedly. We have to stop thinking in terms of kakampi ko ang
Chinese, kakampi ko ang Kano. Ang kakampi mo lang Pilipino, he said.
What is the national interest, what is good for the Philippines, thats all that we
have to be thinking about, he further said.
Marcos said there are three ways to resolve the dispute: by war, adjudication, or
multilateral/bilateral agreements.
We do not want war. Arbitration is not one that is going to be recognized by the
Chinese. So it has to be negotiations, he said.
In pushing for negotiations, Marcos cited the so-called Cod Wars or the dispute
over rich fishing grounds between the United Kingdom and Spain in the early 80s.
He pointed out that at the height of the tensions, war ships even rammed fishing
boats.
In the end, what did they do? They came to a bilateral agreement to share and
now they are working on that basis, he said.
For Del Rosario, UNCLOS provisions "allow the weak to challenge the
powerful on an equal footing, confident in the conviction that principles
trump power; that law triumphs over force; and that right prevails over
might."
Notably, the Court has rejected an argument in Chinas position paper that the 2002 China
ASEAN Declaration on the Conduct of Parties in the South China Sea constitutes an
agreement to resolve disputes relating to the South China Sea exclusively through
negotiation. The Court has decided that the Declaration on Conduct was a political
agreement that was not intended to be legally binding. This may influence the already
lethargic process between China and ASEAN toward a binding Code of Conduct for the South
China Sea.
China has cited its so-called historical rights to uphold its 9-dash line, a
demarcation it uses to claim virtually the entire South China Sea.
Even if true, however, Carpio said these historical rights have no bearing
on maritime disputes under the United Nations Convention on the Law of
the Sea (UNCLOS).
Carpio explained that the UNCLOS extinguished all historical rights of
other states within the 200 nautical mile exclusive economic zone (EEZ) of
the adjacent coastal state.
China has no historical link whatsoever to Scarborough Shoal, the justice
said. The rocks of Scarborough Shoal were never bequeathed to the
present generation of Chinese by their ancestors because their ancestors
never owned these rocks in the first place. (READ: Scarborough Shoal
according to Manila, Beijing)
Carpio, who has written and spoken extensively about the South China
Sea, earlier said the maritime dispute between the Philippines and
China will be an acid testfor international law.
This decision is to be applauded and it will encourage other claimant states to bring forth
their own grievances with China to the open.
If China wants to be taken seriously by the international community and be deemed a
reliable partner by it's neighbors, it should consider dropping it's ambiguous approach
and have the stones to defend it's ridiculous claims with whatever thinks it constitutes
evidence in it's favor and avoid being labeled an expansionist rogue nation.
Let's see if China has the skill to behave like a civilized 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
want to be a part of a PEACEFUL dispute settlement so how will you expect
China to render its commitment as one of the five leaders of UN SECURITY
COUNCIL?
The Philippine government on Thursday said no nation in the world is recognizing the validity of China's territorial
claims over the majority of the South China Sea as shown by the recent statements of US senators and
Indonesian President Joko Widodo.
It reaffirms the belief that no country in the world recognizes that the 9-dash line is a valid claim on the part of
China," he said.
Del Rosario noted the Philippines pursued arbitration "to preserve a valued friendship" with China, without
diminishing its deal to pursue a legally binding code of conduct in the South China Sea.
"International law is the great equalizer...We are in the right and right is might," he said. With Reuters
Pressure not only from the Philippines but from the entire world
The jurisdiction over waters does not have connection to history. It must observe the UNCLOS.
Dutton stressed that using history to explain sovereignty erodes the rules of the UNCLOS. [40] It is
understood that China ratified the UNCLOS in 1996.[41]