Challenging UNCLOS: The Chinese Snub of the Philippines Arbitral Claim to the West Philippine Sea

1. Challenging UNCLOS: The Chinese Snub of the Philippines Arbitral Claim to the West Philippine Sea 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

2. 22 January 2013, the Philippines commenced arbitration proceedings against China under the compulsory and mandatory dispute settlement procedure of UNCLOS (Annex VII)

3. In its Claim, the Philippines asked the arbitral tribunal to rule on three basic issues: • 1. The validity of China’s 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

4. Factual Antecedents • April, 2012, the BRP Gregorio Del Pilar, the Philippines one and only warship, reported that Chinese fishermen were engaged in illegal fishing in the area. • Philippine authorities were prevented from arresting the fishermen by Chinese surveillance boats

5. Shortly thereafter, China warned its nationals against travel to the Philippines and banned the entry of imported pineapples and bananas from the Philippines

6. On May 16, 2012, both the governments of China and the Philippines imposed fishing ban in the Scarborough Shoal. • By July 2012, China had erected a barrier to the entrance of the shoal, and that vessels belonging to Beijing's China Marine Surveillance and Fisheries Law Enforcement Command were deployed in the disputed shoal; • as of September 2012, Chinese government ships remain around the shoal and have been turning away Filipino vessels

7. 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.

8. China’s Position on South China Sea 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 China’s 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)”

9. China’s Map with Nine-Dash-Line

10. China’s Criticism of PH Claim (3) • “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”

11. SECTION 2. COMPULSORY PROCEDURES ENTAILING BINDING DECISIONS • Article 286 • Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.

12. Since Php and China have not chosen specific procedure to resolve their disputes, they fall under Annex VII 0f the Convention: binding arbitration

13. Why Dispute Settlement Procedure • 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

14. Chinese view (Judge Xue Hanqin): China’s 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

15. Why covered: Philippine view- Issue of Interpretation: • Issues addressed by its arbitration claims are issues of interpretation and application: i. validity of nine-dash lines, ii. low water marks as part of continental shelf , iii. nature of waters around Panatag as Philippine EEZ.

16. Chinese View: UNCLOS inapplicable (Xue, Hanqin) • 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.

17. Hudge Xue: “since the end of World War II, the international community, has acknowledged the existence of China’s nine-dash 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”

18. CASE LAW: • 20 Cases under ITLOS; 8 under arbitration with PCA • Interpretation: dispute as to interpretation and application of specific provisions of UNCLOS • “dispute: disagreement as to interpretation, fact or law” (Headquarters Advisory Opinion)

19. Guyana vs. Suriname • Dispute settlement Procedures may apply general principles of international law. Tribunal may issue judgment on use of force and not just strictly issues on UNCLOS

20. China’s reservations under Art. 298 UNCLOS: • 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”

21. Phil view: • 1. Issues do not involve delimitation. Calls merely for interpretation whether China’s 9-dash lines comprise China’s internal waters (34), territorial sea ( 8), or EEZ (55). • Similarly, declarations that islets are low water marks (121 and 5 ) ( Malaysia v Singapore, ICJ) and declaration that waters around Panatag comprise Php EEZ (57) do not involve delimitation

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

23. Philippine view on admissibility • 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

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

25. Further Chinese view: • articles 74(3) and 83(3) provide that if delimitation cannot be effected by agreement: • [T]he States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and during the transitional period, not to jeopardize or hamper the reaching of final agreement. Such arrangements shall be without prejudice to the final delimitation.

26. Barbados v. Trinidad and Tobago • The existence of a dispute is similarly not precluded by the fact that negotiations could theoretically continue. Where there is an obligation to negotiate it is well established as a matter of general international law that that obligation does not require the Parties to continue with negotiations which in advance show every sign of being unproductive

27. Context behind China’s offer of joint use. • Rejected by Php on ground that sovereign rights are exclusive in character

28. joinder of issues • 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

29. WON China’s 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.

30. Cardinal Principle is that Tribunal is sole judge of its own competence. • China disadvantaged by not arguing preliminary objections. It was given until March, 2014 to respond to Arbitral claim and until December 15, 2014 to file its Counter-Memorial • Judge XUE: ““no country can fail to see the design” of the Philippine … It mixed up jurisdiction with the merits”.

31. Why Challenging UNCLOS • 1. Dispute Settlement Procedure is Mandatory. Judeg Xue: “Declaration is an opt out from dispute settlement procedure” • 2. Use of Force is contrary to both UNCLOS and UN Charter prohibition on Use of Force. • A) excluded Phl fishermen from Panatag using armed “government surveillance vessel” and targetting them with water canon; • B) Recent rush in the building of artificial islands in disputed shoals

32. 3. Implementation of a Defense Maritime Policy which envisions “Sea Denial Capability” in the West Philippine Sea by 2020 despite conflicting claims to maritime and land territory. Acquisition of territory by conquest • 4. Insistence in historic claims for 9 dash lines despite it being contrary provisions of UNCLOS

33. 5. Insistence that its declarations in UNCLOS preserved its historic claims to territory even if these claims can find no basisunder UNCLOS • 6. Threat to Withdraw from UNCLOS • 7. Possible defiance of Finding of UNCLOS ad hoc arbitral body

34. 8. Over-all conduct is contrary to letter, spirit and intent of UNCLOS: constitution of the sea adopted by consensus, prohibiting reservations, in order to do away with the use of force in the settlement of disputes arising from maritime territories.