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

22 January 2013, the Philippines

commenced arbitration proceedings against
China under the compulsory and mandatory
dispute settlement procedure of UNCLOS
(Annex VII)

In its Claim, the Philippines asked the arbitral

tribunal to rule on three basic issues:

1. The validity of Chinas 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

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

Shortly thereafter, China warned its

nationals against travel to the Philippines
and banned the entry of imported
pineapples and bananas from the
Philippines

On May16, 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

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.

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 Chinas 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)

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

 Article

286
Subject to section3, any dispute
concerning the interpretation or
application of this Convention shall,
where no settlement has been
reached by recourse to section1, be
submitted at the request of any
party to the dispute to the court or
tribunal having jurisdiction under
this section.

 Since

Php and China have not

chosen specific procedure to
resolve their disputes, they
fall under Annex VII 0f the
Convention: binding
arbitration

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

Chinese view (Judge Xue Hanqin): Chinas

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


Issues

addressed by its arbitration

claims are issues of interpretation
and application: i. validity of ninedash lines, ii. low water marks as
part of continental shelf , iii. nature
of waters around Panatag as
Philippine EEZ.

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.

Hudge Xue: since the end of World War II,

the international community, has
acknowledged the existence of Chinas
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

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)

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

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

1. Issues do not involve delimitation. Calls

merely for interpretation whether Chinas 9dash lines comprise Chinas 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

Since maritime zones generated by land

territory, validity of 9 dash lines entail
delimitation of conflicting land and maritime
boundaries with Phl.

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

Moreover, UNCLOS require PhP and China to

delimit bilaterally through negotiations and
agreement at the first instance.

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.

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

Context behind Chinas offer of joint use.

Rejected by Php on ground that sovereign

rights are exclusive in character

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

WON Chinas 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.

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.

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

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

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

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.