Later today, the verdict of one of the most high-profile international arbitration cases in recent history will be handed down to parties and to the public digitally.
“There will be no in-person meeting or ceremony for the rendering of the Award,” the International Permanent Court of Arbitration (PCA) said in its statement last June 29, 2016.
“The Award will first be issued via e-mail to the Parties, along with an accompanying Press Release containing a summary of the Award,” it said.
Nations who observed the proceedings, PCA Member States, PCA Members of Court, the public and the media will also receive e-mails of the decision.
After the e-mails have been sent, the decision will also be uploaded to their website.
Philippines initiated the arbitration proceedings against China on Jan 22, 2013 following the tense standoff between Philippine and Chinese naval vessels at Scarborough shoal the previous year.
China claims the entire South China Sea as part of its “nine-dash line” claim which overlaps with the Philippines 200-nautical mile exclusive economic zone (EEZ).
China has refused to participate in any part of the arbitration proceedings insisting it has “undisputed sovereignty” over the South China Sea.
The tribunal has previously ruled that it has jurisdiction over the case and has heard the arguments submitted by the Philippines.
The historic case aims to invalidate China’s claim of “historic rights” over the South China Sea through its “nine-dash line” claim that overlaps with the Philippines 200-nautical mile exclusive economic zone (EEZ).
China has refused to participate in the proceedings saying it does not recognize the jurisdiction of the tribunal and has reiterated that it will not abide by any decision of the court.
Why did the Philippines file a case against China?
The 2012 Scarborough Shoal standoff was one of the factors that prompted the Philippines to file a case against China.
Tensions between the two countries escalated when Chinese surveillance ships prevented Philippine authorities from apprehending Chinese vessels found poaching endangered Philippine marine species at the shoal.
The dispute over maritime features in the South China Sea has been ongoing for decades prior and involved other Southeast Asian countries such as Vietnam, Malaysia, Indonesia.
“The Philippines has exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of its maritime dispute with China. On numerous occasions, dating back to 1995, the Philippines has been exchanging views with China to peacefully settle these disputes. To this day, a solution is still elusive,” the Department of Foreign Affairs (DFA) said in a statement on Jan 22, 2013 when it first initiated arbitration proceedings.
“We hope that the Arbitral Proceedings shall bring this dispute to a durable solution,” it said.
Philippines asked the Arbitration Tribunal to invalidate China’s “nine-dash line” claim because it does not conform to the United Nations Convention on the Law of the Sea (UNCLOS), an international treaty signed and ratified by both China and the Philippines. It is regarded as the constitution of the seas.
2. What does “arbitration” mean and what will it achieve?
Arbitration refers to a process in which a party submits a “dispute” to an unbiased, independent third party. Its main goal is to settle and conclude the disputes presented.
The Permanent Court of Arbitration is an intergovernmental organization established in 1899 that designates arbitral tribunals to resolve disputes between and among nations. It is based in The Hague, Netherlands, and currently presides over the arbitration case.
Philippines brought the case before the tribunal to dispute China’s claim of “indisputable sovereignty” over almost the entire South China sea through its “nine-dash line” claim.
3. What is Unclos and what is the EEZ?
The United Nations Convention on the Law of the Sea (Unclos) is an international treaty that defines the limits of a nation’s maritime sovereignty claims. This convention was ratified by both the Philippines and China. Under its provisions, areas within 200 nm from the country’s baselines would be part of the EEZ.
Unclos states three basic maritime features:
– Islands under the sovereignty of a country are entitled to a 12 nm (approximately 22 kilometers) territorial sea and a 200 nm (approximately 370 km) exclusive economic zone (EEZ). The state may exclude foreign entities within its territorial sea and has sole right to exploit resources found within the EEZ.
– Rocks or reefs are maritime features that are mostly below water but have protrusions that remain above water during high tide. Such features are entitled to only a 12 nm territorial sea and no EEZ. Examples of such are Bajo de Masinloc, also known as Panatag shoal or Scarborough shoal, which lies 120 nm off the coast of Zambales province. “Low-tide elevations” are fully submerged rocks or reefs. These are not entitled to any territorial sea or EEZ. In the past several years, China has conducted massive land reclamation projects on several submerged reefs in the Spratly group of islands turning them into artificial islands and establishing military installations.
– Unclos states that artificial islands “do not possess the status of islands” and are not allowed to have a “territorial sea.” It also states that only the coastal state has the right to build artificial islands in its EEZ.
4. What is so important about the South China Sea?
The South China Sea contains three groups of maritime features—the Spratly and Paracel groups of Islands and Scarborough Shoal. All countries involved in the maritime dispute recognize that the sea is rich in resources such as fish and other marine life, and reserves of oil.
The sea is also a major shipping lane in Southeast Asia prompting many countries worldwide to call for restraint so as not to disrupt the vital trade route. The 3.5 million square km sea is also strategic as it provides access to nearly the entire Southeast Asian region.
5. What are the bases of the Philippines’ and China’s claims?
Former Foreign Secretary Albert del Rosario listed the Philippines’ five main claims during his speech delivered in front of the UN tribunal last July 7, 2015:
– China’s “historic rights” claim violates Article 57 of the Unclos, containing the provisions of the 200 nautical miles EEZ;
– China’s “nine-dash line” has no basis under international law; rather, it only emphasizes the limitations presented by their “historic rights”;
– Some parts of the South China Sea are “rocks” that therefore have no EEZ. In accordance with Article 121, Paragraph 3 of the Unclos, China cannot claim these maritime features as most of these are reefs and low-tide elevations;
– “China has breached the Convention by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction”; and
– Destructive fishing practices done by China brought about permanent damage on coral reefs and marine life, including some areas within the Philippines’ EEZ.
In 2002, the Association of Southeast Asian Nations (Asean) and China issued a Declaration on the Conduct (DOC) of Parties in the South China Sea to ensure “peaceful settlements” of disputes.
In line with this, China asserted that bilateral consultations would be the best solution in settling the rift.
Del Rosario, however, countered that despite the Philippines’ “diplomatic efforts” in resolving this issue with China through the provisions of the DOC, the latter still continued its “cabbage” strategy in claiming majority of the South China Sea—taking small steps at a time such as enforcing its “nine-dash” claim in 2009 and “forcefully exploiting” living and nonliving resources from the islands and the Scarborough Shoal.
The Philippines then concluded that submitting an arbitration case to the UN, under international law, would be the most appropriate way to resolve this dispute.
6. Are there other countries involved in the arbitration case?
The territorial disputes in the South China Sea began decades ago when Japan decided to renounce its claims on the Spratly Islands. The Philippines, Brunei and Malaysia all argue that either all or some parts of the Spratlys are part of their respective EEZs; Vietnam says they have already occupied both the Spratly and Paracel islands centuries ago; and China claims that they have “historic rights” over the Islands since their ancestors were the first to discover and name them.
Two of these claimant countries attended as observers during the hearings of the tribunal, namely Vietnam and Malaysia. Also part of the observer team were Indonesia, Thailand and Japan.
7. What will happen after the arbitral tribunal issues a decision?
Once the tribunal issues a decision on July 12, the case could go either way: The tribunal could consider China’s “historic rights” and “nine-dash line” claims, or they could agree with the Philippines’ claim that some maritime features being claimed by China are not entitled to the 200 nautical mile EEZ.
Whatever the decision may be, both the Philippines and China cannot make an appeal. According to the UN Conference on Trade and Development, “awards” or decisions are “final and binding, and there is no right of appeal.”
The Philippines claimed an initial victory on October 29, 2015 when it won the first round of the proceedings after the tribunal decided it had jurisdiction over the case. The tribunal at The Hague, Netherlands concluded that they had “every right” to hear the case, thus thrashing China’s “strongest argument.” -Philippines Daily Inquirer/Asia News Network
