PHILIPPINES and CHINA: HISTORY versus LAW

According to a CNN Philippines report, our country has been praised by nations around the world, because it is the first country to have dared (under Art. 287 and Annex VII of UNCLOS1) to take China to the court. China has refused to engage the legal proceedings, and claimed that they have “inherent and indisputable” sovereignty over almost the entire South China using the principle of nine-dash line. China’s State Department explained that the nine-dash line was a valuable tying together of multiple legal strands of analyses in the area of customary and treaty-based maritime law. It tests three possible interpretations of the dashed-line claim:2

1. that the dashes represent a title to the islands and island groups that it encloses;2. that the dashes represent a national maritime boundary; and3. that the dashes represent a historic rights-based claim line to waters that are exclusive to China.

However, the US State Department was not persuade on China’s contention and said that 9-dash line failed to clarify their claim over the South China Sea consistent to the international law3 and has not barred the United Nations Convention on the Law of Sea for the resumption of Philippine arbitration efforts, which was started on early 2013.4

On their own study5, which was published on December 9, 2014, they said that Law of the Sea does not permit maritime entitlements to be overridden by another state’s maritime claims that are based on ‘history,’ To the contrary, a major purpose and accomplishment of the Convention is to bring clarity and uniformity to the maritime zones to which coastal States are entitled.

Moreover, Dashes 2, 3 and 8 that appear on China’s 2009 map are not only relatively close to the mainland shores of other states, but all or part of them are also beyond 200 nautical miles from any Chinese-claimed land feature.

1 http://www.un.org/Depts/los/convention_agreements/texts/unclos/annex7.htm2 See more at: http://www.chinausfocus.com/peace-security/the-nine-dash-line-and-its-basis-in-international-law/#sthash.ZPzdAus8.dpuf “3 http://www.rappler.com/nation/77456-us-study-nine-dash-line4 http://cnnphilippines.com/news/2015/07/09/moment-of-truth-philippines-vs-china-the-hague-richard-heydarian.html5United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs : Limits in the Seas p.22

HOW EVERYTHING STARTED?The territorial and maritime issues related on South China Sea (or West Philippine

Sea) were already existing even in early 1930’s. The first official publication of China’s Nine-Dashed Line claim happened when, in 2009, submissions were made (one by Vietnam and Malaysia jointly, and another by Vietnam alone)6 for areas of the continental shelf beyond 200 nautical miles in the South China Sea in accordance with UNCLOS, which was followed by a sharp exchange of diplomatic notes. The tussle was thereafter followed by a string of increasingly risky confrontations at sea.

The action of Philippine government against China was started on the incident happened on early 2011 after was reported that Chinese ships had used water cannon against Philippine fishing boats and two Chinese patrol boats (China Maritime Surveillance) harassed a seismic survey vessel operating in Philippine-claimed waters, Reed Bank, lies west of Palawan Island and within the Philippines-declared exclusive economic zone (EEZ). The most serious incident was happened in March when the China’s surveillance ships

6 Joint Submission by Malaysia and Socialist Republic of Viet Nam ( May 6, 2009) on Commission on Limits of the Continental Shelf

prevent the Philippine Navy7 from re-supplying and replacing personnel on its outpost on Second Thomas Shoal. The incident underscored China’s continued willingness to apply limited coercion in disputes with Southeast Asian countries over maritime resources such energy resources and fisheries8. Soon after, China lodged a diplomatic protest against the Philippines’ public auction of petroleum concession blocks which included two areas between Reed Bank and the Philippine island of Palawan. The Philippines subsequently lodged its own diplomatic protests against China’s fishing and military activities in Reed Bank and nearby areas. Relations increasingly became strained as China’s press openly warned of military action, spurring an official response from the Philippines. The exchange of protests continued well into the first quarter of 2012. Tensions between the two countries reached a head in April that year with a month-long confrontation between Philippine and Chinese vessels at Scarborough Shoal, which ended when Philippine ships left the shoal upon a reported agreement for mutual withdrawal in June 2012. Shortly after, however, Chinese vessels returned and have since been in control of the shoal.

January 23. 2013 - the Philippine announced that it initiated an arbitration case against China by issuing a Notification and Statement of Claim9 in accordance with the dispute settlement provisions of UNCLOS, particularly under Art. 287 and Annex VII. Both the Philippines and China are signatories to UNCLOS, having ratified it in 1984 and 2006 respectively.February 19, 2013 – the China rejected the said Notification and Statement of Claim and returned it to the Philippines; however the case was not disbarred as provided on Article 9 of UNCLOS, Annex VII.10

7 Second Thomas Shoal Tensions Intensify (http://thediplomat.com/2014/03/second-thomas-shoal-tensions-intensify/)

8China and the Philippines: Implications of the Reed Bank Incident

(http://www.jamestown.org/single/?no_cache=1&tx_ttnews%5Btt_news

%5D=37902#.VkyiLnYrLIV)

9 http://www.gov.ph/2013/01/22/dfa-notification-and-statement-claim-on-west-philippine-sea-january-22-2013/See more on http://amti.csis.org/arbitration-101-philippines-v-china/10 Article 9: Default of appearance - If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

July 11, 2013 – the five-member Arbitral Tribunal11 met at the Peace Palace in The Hague.August 1, 2013 – the China reiterated their rejection of the proceedings on Note of Tribunal.August 27, 2013 - the Tribunal thereafter issued its first Procedural Order designated the Permanent Court of Arbitration (PCA) to act as registry of the proceedings, and adopted the Tribunal’s Rules of Procedure and initial timetable. The Tribunal is actually a separate entity and independent of either the International Tribunal on the Law of the Sea or the PCA; by being the registry, the PCA primarily hosts the tribunal and provides its administrative support.March 30, 2014 - The Philippines submits its Memorial12 to the Arbitral Tribunal. The ten volume Memorial contains the Philippines’ legal analysis and evidence for the case, as well as argues that the Arbitral Tribunal indeed has jurisdiction over the case.April 2014 – the signing of US Enhanced Defense Cooperation Agreement (EDCA) that supplemented the existing arrangement with the United States for mutual logistics support and visiting forces. It is intended to assist the Philippines in modernizing its armed forces and developing its capabilities, particularly in the areas of maritime security and maritime domain awareness.May 2014 – The Philippines protested against the release of surveillance photographs of land reclamation taking place on a massive scale and at rapid pace on Johnson South Reef (Mabini Reef)13 and similar activities have been reported on Cuarteron Reef, McKennan Reef,

11 As provided in Article 3 of UNCLOS, Annex VII – (a) xxxx , the arbitral tribunal shall consist of five members.

12 “The Memorial presents the Philippines’ case on the jurisdiction of the Arbitral Tribunal and the merits of its claims. It consists of ten volumes. Volume I, which is 270 pages in length, contains the Philippines‘ analysis of the applicable law and the relevant evidence, and demonstrates that the Arbitral Tribunal has jurisdiction over all of the claims made by the Philippines' in its Statement of Claim, and that every claim is meritorious. It sets out the specific relief sought by the Philippines in regard to each of its claims, and shows why it is entitled to such relief.

Volumes ll through X contain the documentary evidence and maps that support thePhilippines’ claims, all of which are cited in Volume I. Volumes ll through X consist of more than 3,700 pages, including more than 40 maps, for a total submission of nearly 4,000 pages.” – See on https://www.un.int/philippines/sites/www.un.int/files/Philippines/press_statement_of_sfa_albert_del_rosario_submission_of_ph_memorial_to_the_arbitral_tribunal.pdf13 See The West Philippine Sea Arbitration ( http://www.dfa.gov.ph/index.php/2013-06-27-21-50-36/dfa-releases/2871-china-s-reclamation-on-mabini-reef) for actual photos.

Gaven Reef and Cross Reef. Despite of repeated protests, the reclamation activities continues.14

December 5, 2014 – The United States declared on their official report 15 that nine-dash line claim could only be intentionally acceptable as a claim to territorial sovereignty over islands inside the line but waters beyond those islands will be under their claim if it was in accordance with UNCLOS. The State Department paper scrutinized China’s ambiguity of the nature of its claim and denied claims using historic title or claim.December 7, 201416 – China publicly released a Position Paper17 as Counter-Argument stating their objections against jurisdiction of the arbitral tribunal and asserted that the case was essentially founded on the issue of sovereignty over islands and other maritime issues in the South China Sea and it could not be decided on the Philippine claims without undertaking maritime delimitations. They contended that the case falls outside tribunal’s jurisdiction since it’s within the optional exceptions to the jurisdiction of binding dispute settlement mechanism that China invoked in 2006 Declaration18 in accordance with the terms of Article

14

? Philippines Protests (http://www.scmp.com/news/asia/article/1532473/philippines-files-fourth-protest-over-china-reef-reclamation-disputed)

15 United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs : Limits in the Seas

16 See more on http://amti.csis.org/arbitration-101-philippines-v-china/

17 Position Paper of the Government of the People's Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml)

18 2006 Ocean and Law of the Sea Declaration:

CHINA - In accordance with the decision of the Standing Committee of the Eighth National People's Congress of the People's Republic of China at its nineteenth session, the President of the People's Republic of China has hereby ratified the United Nations Convention on the Law of the Sea of 10 December 1982 and at the same time made the following statement:

1. In accordance with the provisions of the United Nations Convention on the Law of the Sea, the People's Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the

298 of UNCLOS. China also stated that Philippines was in bad faith for abusing its right under UNCLOS due to unilaterally taking arbitration to China, yet, expressing that they were not participating in the proceedings.December 11, 2014 - Vietnam quietly submitted a confidential statement to the Tribunal regarding the case. Vietnam stated that it requested the Tribunal to pay due regard to the legal rights and interests of Vietnam19, but recognized the Tribunal’s jurisdiction over the case and supported the Philippines’ arguments against the legality of China’s nine-dash line claim.December 17, 2014 - The Tribunal issued another Procedural Order20 and recorded that China did not submit a Counter-Memorial, and reiterated its decision to neither accept nor

continental shelf.

2. The People's Republic of China will effect, through consultations, the delimitation of the boundary of the maritime jurisdiction with the States with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability.

3. The People's Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People's Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992.

4. The People's Republic of China reaffirms that the provisions of the United Nations Convention on the Law of the Sea concerning innocent passage through the territorial sea shall not prejudice the right of a coastal State to request, in accordance with its laws and regulations, a foreign State to obtain advance approval from or give prior notification to the coastal State for the passage of its warships through the territorial sea of the coastal State.

Declaration made after ratification (25 August 2006)

Declaration under article 298:

The Government of the People's Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.

participate in the arbitration. The Tribunal acknowledged that its members had been furnished with copies of China’s public position paper while noting that it also expressly stated that the position paper should not be regarded as acceptance or participation in the proceedings.In accordance with its Rules of Procedure, the Tribunal gave the Philippines until March 15, 2015 to submit a supplemental submission on the Tribunal’s jurisdiction and the merits of the case, in particular to address the points raised by China’s position paper. After the submission, China will have a similar period of 90 days within which to file a response.January 29-30, 201521 - Viet Nam’s Deputy Prime Minister and Minister for Foreign Affairs Pham Binh Minh and Philippines’ Secretary of Foreign Affairs Albert F. del Rosario “expressed their serious concern over the ongoing massive reclamation activities that pose threats to the peace and stability in the region as well as to the lives of many people across

19 Vietnam sent a statement to The Hague's Permanent Court of Arbitration, making three main claims in opposition to China's stand on the islands.

First, it recognised the court's jurisdiction over the case brought by the Philippines, directly contradicting China's position that the court had no such authority.

Second, it asked the court to give "due regard" to its legal rights and interests in the Spratlys, the Paracels and in its exclusive economic zone and continental shelf when deciding on the merits of the Philippine case.

Finally, it rejected the Chinese nine-dash line demarcation - the basis of China's claims to ownership over much of the South China Sea - saying that it was "without legal basis".

See on (http://www.scmp.com/news/china/article/1661364/china-rejects-vietnam-claims-arbitration-submission-over-south-china-sea)

20 PRESS RELEASE: Arbitration between the Republic of the Philippines and the People’s Republic of China (http://www.pca-cpa.org/PH-CN_20141217_Press_Release_No_3%20(ENG)dac6.pdf?fil_id=2846)

21 Philippines- Viet Nam Joint Commission for Strategic Partnership ( http://www.gov.ph/2015/01/30/1st-meeting-of-philippines-viet-nam-joint-commission-on-concluding-a-strategic-partnership-held-in-manila/)

the various coastal states in the South China Sea” and co-chaired the meeting of the Philippines-Viet Nam Joint Commission on concluding a Strategic Partnership.22

March 17, 2015 - The Philippines provides a supplemental submission23 to the Arbitral Tribunal to answer the questions that had requested an expanded argument and additional information. The questions were focused on the issue of the tribunal’s jurisdiction in the case and the merits of the Philippines’ claims, including the Philippines’s principled claim challenging the lawfulness of China’s so called “nine-dashed line.”24

April 22, 2015 - The Permanent Court of Arbitration issues a press release25 declaring that on July 2015, the honorable Court will conduct a hearing to address the objections to jurisdiction set out in China’s Position Paper. The Arbitral Tribunal will also consider other matters concerning its jurisdiction and the admissibility of the Philippines’ claims. Further, it states that in the absence of formal participation in the proceedings, the Arbitral Tribunal would use China’s communications, to include the position paper from December 2014, as a plea with regards to the Tribunal’s jurisdiction in the case.26

June 16, 2015 - China misses the tribunal deadline to submit any final statements in response to the Philippines’ Supplemental Written Submission.27 However, Philippines was alarmed as China’s foreign ministry stated that, “China is about to complete the land reclamation operation at some of the Nansha Islands (Spratlys) where China has been

22

? China, the Philippines, Vietnam and International Arbitration on South China Sea (http://www.globalresearch.ca/china-the-philippines-vietnam-and-international-arbitration-in-the-south-china-sea/5484992)23 Supplemental Memorial at Permanent Court of Arbitration (http://www.gov.ph/2015/03/17/dfa-statement-on-phs-supplemental-submission-to-the-arbitral-tribunal/)

24 Philippines submit 3,000-page rebuttal vs China. See on (http://www.rappler.com/nation/87100-philippines-supplemental-memorial-china)

25The Arbitral Tribunal Sets Dates for Hearing on Jurisdiction and Admissibility. See on http://www.pca-cpa.org/PH-CN%20-%2020150422%20-%20Press%20Release%20No.%204%20(ENG)7045.pdf?fil_id=2910.26 http://amti.csis.org/ArbitrationTL/index.html27 China Ignored the Sea Case – PH ; See on http://www.rappler.com/nation/96676-china-deadline-south-china-sea-philippines

stationed”28 and indicating that Beijing is close to setting up new outposts in the maritime heart of Southeast Asia.29

July 7, 2015 - On the first day of hearings before the Arbitral Tribunal30, Philippine Secretary of Foreign Affairs Albert del Rosario outlines31 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 China’s 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. July 8, 2015 - The second day of hearings32 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.”July 9, 2015 - In the morning hearing, the Philippines’ legal team33 continues to argue that the Arbitral Tribunal has jurisdiction over the case. In the afternoon hearing, the Philippines’ environmental and fishing claims against China are argued and Professor Philippe Sands brings the first round of arguments to an end by summarizing what the Philippines has argued thus far. July 10, 2015 - The Arbitral Tribunal34 meets to deliberate on what the Philippines has presented so far in the first round of arguments. It is announced that a second round of oral arguments35 will take place on July 13.July 11, 2015 – Secretary Leila de Lima, acting on a suggestion by Supreme Court Associate Justice Antonio Carpio, states that if the Arbitral Tribunal decides that it has jurisdiction over the case36, the Philippine government is considering seeking provisional measures to ensure that China ceases its reclamation activities. These are provided for in UNCLOS, which states

28 http://cnnphilippines.com/world/2015/06/17/Beijing-on-South-China-Sea-reclamation.html29 http://www.interaksyon.com/article/112534/video--china-says-about-to-finish-some-land-reclamation-in-south-china-sea30 http://cnnphilippines.com/news/2015/07/08/day-1-philippine-arguments-the-hague-arbitral-tribunal.html31 http://www.rappler.com/nation/98769-philippines-china-hague-opening-statement-full-text32 http://www.philstar.com/headlines/2015/07/09/1475007/day-2-hague-philippines-presents-environmental-fishing-claims-vs-china33 http://www.gov.ph/2015/07/09/bulletin-3-arbitral-tribunal-the-hague/34 http://www.gov.ph/2015/07/10/bulletin-4-arbitral-tribunal-the-hague/35 http://www.rappler.com/nation/98903-hague-arbitral-tribunal-philippines-china

that the “tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.”July 13, 2015 - The hearing on jurisdiction and admissibility37 of the Philippines’ claims against China concludes. The hearing had been extended to a second round of arguments in order to answer final questions from the tribunal. The Arbitral Tribunal gives the Philippines until July 23, 2015 to submit expanded answers to its questions. The tribunal said it would issue a ruling on preliminary jurisdiction “as soon as possible and expects to do so before the end of the year.” Paul Reichler, who heads up the Philippines’ legal team, was more specific, saying he expects a decision within 90 days.38

October 29, 2015 – The first decision in The Republic of the Philippines vs. The People’s Republic of China was awarded. The Permanent Court of Arbitration noted that the decision was “unanimous” and “concerns only whether the Tribunal has jurisdiction to consider the Philippines’ claims and whether such claims are admissible.” The court ruled that the case was “properly constituted” under the United Nations Convention on the Law of the Sea and that the Philippines was within its rights in filing the case, on the other hand, has rejected argument in China’s position paper.39 The case will allow moving forward for more oral arguments. A final decision on case is then expected by June 2016.40

36 http://cnnphilippines.com/news/2015/07/10/hague-hearings-arbitral-tribunal-decision-second-round-arguments.html37 http://www.gov.ph/2015/07/14/bulletin-6-arbitral-tribunal-the-hague/38 http://thediplomat.com/2015/08/the-philippines-china-arbitration-what-next/39 http://thediplomat.com/2015/10/philippines-v-china-court-rules-favorably-on-jurisdiction-case-will-proceed/40 http://www.gmanetwork.com/news/story/521230/news/nation/phl-sees-un-court-ruling-on-case-vs-china-in-3-months