Ateneo i of Intestine Law A DIGEST OF THE SOUTH CHINA SEA ARBITRATION CASE _ : . * The Parties to this arbitration are the Republic of the Philippines ("Philippines") and the People’s Republic of China (“China”). Soa se Semeis mertc ot ee Ce "Thee Ss tain ene ean mt Sut = ant > Ine Uae ecstacy ee Sr Case Sea © The is the 1982 United Nations Convention on the . me a . Convention, the Philippines having ‘it on 9 May 1984, and China on 7 seca oes UNCLOS was adopted as 8 "constitution for the oceans” in order to "settle all disputes relating to the law of a 8 XVI. None of the Tribunal’s decisions in this award are dependent on 2 finding of sovereignty. + Moreover, this Award Ih UNCLOS does contain provisions ne the delimitation of maritime boundaries, something expressly permitted by UNCLOS. Thus, the Tribunal was not asked to, nor does it purport to, rule on maritime boundaries. '* The disputes that the Philippines has placed before the Tribunal fall broadly within four categories: o First, ilippines ha: pecifically, the Philippines seeks a declaration that China's rights are based on the Convention and not any claim of historic rights, and that? the lippines has asked the Tribunal to resolve a dispute between the Parties concerning the, Third, the Philippines has asked the Tribunal to resolve a series of disputes between the Parties concerning the Fina hs ate tne Conventcn bye none ees Seca PAGE | 60Philippines’ recourse to arbitration. «China has consistently rejected the Nevertheless, this n the Parties has per Article 296(4) of UNCLOS and Article 11 of Annex Despite its decision not to appear for ‘on 7 December 201: “China and the Philippines, instruments and the Declaratic ‘South China Sea, to settle their relevant and; « 7ne' disputes submitted by the Philippines “would constitute 2 integral put of maritime delimitation between two countries ‘communications from China ‘and to conduct a separate Rese Award on Jurisdiction, the Tribunal reached conclusions eee pect to 7 ofthe Philippines’ 15 Submissions while deferring decisions on Seven other Submissions for further consideration. 11. Procedural History ee the Philippines initiated arbitration proce Convention. ‘and stated that its position on the South China Sea |e China rejected the arbitration Gaues has been consistent and that "atthe core are the territorial disputes over Some isiands and reefs of the Nansha Islands.” |, 2 German national, as a member of the ith Article 3(b) of Annex VII to the Convention. feedings against China pursuant to the Tribunal in accordance the L ‘as the second arbitrator judge Pawlak, @ national of Poland, pursuant to Articles 3(c) and 3(e) of Annex VII to the Convention . “hopointed the remaining three arbitrators, in accordance with Articles 3(4) and ex VII to the Convention ed an Order adopting the a Memorial 3(e) of Anne «The Tribunal issu the Philippines to submit Rules of Procedure and fixing a date for 1 that shall fully address all issues. Pace | 61 a fae emitqr. Philippines submitted its Memorial addressing all aspects of the case including issues of jurisdiction, admissibility, and the merits, and concluded with 15 submissions setting out the relief sought. The Philippines wrote to the Tribunal concerning recent 3 the pI j regarding China’s most recent actions in and around the same, and expressing concern abot ' ities at several features in the South China Sea, in particular th at McKennan Reef, Hughes Reef, Johnson Reef, the Gaven Reefs, and Cuarteron Reef. The Chinese government expressed that it will not participate in the arbitration unilaterally initiated by the Philippines. Chinese Ambassador to the Netherlands sent a second letter to the members of the Tribunal recalling China's practice of resolving the disputes related to territory through negotiation and noting China's “legitimate right” under the Convention not. to accept any imposed solution or any unilateral resorting to a third-party settlement, a right that it considered the Philippines breached by initiating the arbitration. Philippines filed written responses to questions posed by the Tribunal. China did not respond but instead published remarks reiterating that they are neither accepting nor participating in the arbitration, as well as that the Arbitral Tribunal has no jurisdiction. Tribunal issued its Award on Jurisdiction, which was unanimous, only addressed matters of jurisdiction and admissibility; it did not address the merits of the Parties’ dispute. ‘The Tribunal confirmed that it was ready to proceed with a hearing on the merits and any outstanding questions of jurisdiction and admissibility and stated that it was willing to make schedule adjustments if China decided to participate. China did not comment. The Hearing on the Merits ~ oral presentations in two rounds in late November 2015 at the Peace Palace in The Hague, Netherlands. Preliminary Matters ‘The Legal and Practical Consequences of China’s Non-Participation © Throughout the proceedings, China has rejected and returned correspondence from the Tribunal sent by the Registry, reiterating on cach oocasloggeuiatlt does oot accept the arbtration {ntiated by the Philippines.” The Tribunal has taken @ number of measures to safeguard procedural rights of both China and the Philippines, such as ensuring that all communications and materials have been promptly delivered to the Ambassador of China in The Hague and providing multiple hearings and opportunities for both parties to comment on certain materials relevant to the dispute. © The Tribunal has considered and addressed the disadvantages of non- participation such as (1) delay, (2) lack of opportunity to address any Pace | 62