Philippines vs. China: Arbitral Claims under UNCLOS

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Launching the Arbitral Case
The arbitration, filed in accordance with the dispute settlement provisions of the 1982 UN Convention on the Law of the Seas (“UNCLOS”) (Art. 287 and Annex VII (“Arbitration”), commenced on 22 January, 2013, when the Philippines served China with a “Notification and Statement of Claim” “over the maritime jurisdiction of the Philippines in the West Philippine Sea.” On 19 February, 2013, China, in a diplomatic note setting out “the Position of China on the South China Sea issues,” rejected the Notification. Both countries ratified UNCLOS.
Part 1. Philippines’ good-faith attempts at negotiations with China
As Paul S. Reichler, Lead Counsel for the Philippines, explains at an UNCLOS discussion: “Negotiations go back to 1995 … China simply held on to the position that China had sovereignty and sovereign rights within the 9-dash line.” The situation was aggravated in April 2012 by Chinese ships surrounding Scarborough Shoal.” “And in the spring of this year, China moved in on Second Thomas Shoal.” (P.S. Reichler, Foley Hoag LLP)
Part 2. What lies at stake?
PHILIPPINES: If China’s claim [assertion of its 9-dash line] were allowed to stand, the Philippines stands to lose substantial rights to her Exclusive Economic Zone (EEZ). China would deprive fishermen from Zambales and Pangasinan of their livelihood. China’s land reclamation and islandbuilding activities would damage the marine ecosystem. The safety of maritime vessels would be at risk. The potential to exploit a major hydo-carbon resource in Reed Bank (100 miles off Palawan) would be lost.
CHINA: Apart from asserting sovereignty over “an area defined by the “9-dash line,” a right that China asserts “goes back centuries to when the Paracel [disputed by Vietnam] and Spratly island chains were regarded as integral parts of the Chinese nation” (BBC News), China has refused to take part in the case, or to accept the jurisdiction of the Tribunal. (see the PROC’s Position Paper, 7 Dec. 2014)
Part 3. Philippines Resorts to Arbitration in accordance with UNCLOS
Philippines’ “Rules-based” Approach. As Reichler explains: “Confronting China militarily is not a viable option. The Philippines does not have the kind of economic or commercial influence” to change her behavior.” But the one option that appeared was the law” because “before an arbitral tribunal, a small State that is weaker militarily, economically, commercially, has the opportunity, at least, to compete on equal terms.” (Reichler, A UNCLOS discussion)
Philippines’ Strategic Approach in the Arbitration. Adhering to the requisites of UNCLOS, the Philippines did not seek a ruling “on the territorial sovereignty aspect.” She instead sought a “clarification of her maritime entitlements.” Reichler elaborates: Under UNCLOS, “a coastal state entitlement is described as a 12-mile entitlement to a territorial
sea over which the coast exercises sovereignty over land, and almost a 200-mile economic zone off its coast.” Within 200 miles off its coast, “a State has an exclusive entitlement to use the living resources, fish in the water, and the non-living resources under the sea bed, that is, the continental shelf.” “China’s claims conflict with this sovereignty or sovereign rights not only of 200 miles but of more than 800 miles” from her mainland coast.
(A) 9-dash line. The Philippines’ “main claim” is that China’s 9-dash claim, that is, her claim of sovereignty and sovereign rights extending far beyond her entitlement under UNCLOS, is “inconsistent with that Convention and it constitutes a trespass or violation of the Philippines within 200 miles.” (Reichler, A UNCLOS Discussion)
Reichler emphasizes: “Sovereignty is disputed.” But under UNCLOS, an arbitral tribunal “does not have jurisdiction to determine sovereignty over land features, and that includes islands or insular formation. However, what the Philippines has asked of the Tribunal is that it determine the status of this feature under the Convention, that is, is it a true island which would generate, like a State with a coastline, a 200- mile exclusive economic zone and continental shelf, or is it what the Convention refers to as a rock, an insular feature that is above water at high tide?” (Reichler; bold added)

Read more: http://maritimereview.ph/2016/01/18/philippines-vs-china-arbitral-claims-under-unclos/

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