What's next after PH opts for arbitration over sea dispute

By Ira Pedrasa, ABS-CBNnews.com

Posted at Jan 23 2013 08:50 PM | Updated as of Jan 24 2013 04:50 AM

'China has no choice but to enter into arbitration with PH'

MANILA - The Philippines is doing a “David” in fighting China over its claims in the West Philippine Sea, and the move to bring the dispute to international arbitration might put the country on equal footing with the “Goliath” that is China, and may even lead to a diplomatic victory. 

In a press conference Wednesday, Foreign Affairs Assistant Secretary of Special & Ocean Concerns Gilberto Asuque said that in pushing for arbitration, the issue shifts to issues such as exclusive economic zones (EEZs). 

“We are bringing the issue of the sovereign rights of the Philippines over its exclusive economic zone and its jurisdiction over its continental shelf,” he said.

International law expert Harry Roque, in a separate interview with ANC, said he had long been waiting for the Philippines to go for arbitration because it already has the advantage via the Philippine baselines law, which has been accepted by the United Nations Convention on the Law of the Sea (UNCLOS).

He said China has so far been using “might and diplomatic pressure, that is why it is insisting on a bilateral approach [to resolving the matter] knowing full well that we’re not on equal footing.”

In a statement on Tuesday, China insisted on its “indisputable sovereignty” over the West Philippine Sea as it noted that disputes should be settled through bilateral “negotiations."

‘Good faith’

Asuque said the arbitral tribunal is a compulsory proceeding, which means China – as a signatory to the UNCLOS – should answer. Nonetheless, he said the next step now after notifying China is the formation of the five-member arbitral panel.

Article 3 of Annex 7 of UNCLOS provides that China, “within 30 days of receipt of the notification…appoint one member to be chosen preferably from the list, who may be its national.”

Both will then agree on the three other members. If not, the president of the International Tribunal for the Law of the Sea (ITLOS) will come in to pick the members of the panel.

He urged "China to comply with their [UNCLOS] obligations in good faith.”

"What we want to do is to form an arbitral panel and we invite China to do so,” Asuque said.

The Philippines has named Judge Rudiger Wolfrum to the panel. Wolfrum is a former president of ITLOS.

Roque said China is technically a part of the process already, being an UNCLOS signatory.

Even if China does not participate, “the [arbitration] process will move...[but] it just would not be able to adduce evidence on its behalf,” Asuque said.

Article 9 of Annex 7 provides that: “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.”


Asuque insisted this is not an issue anymore of determining "which party enjoys sovereignty over the islands nor a delimitation of maritime boundaries.”

The Philippines has already staked its claim, he said. In its “statement of claim” presented on Tuesday, the country said China should be compelled to respect the country’s right to exploit resources that are well within its properties.

The Department of Foreign Affairs (DFA) also earlier said: “In any legal action, however, there are many different factors to consider. What is more important is that we are able to present our case against China and defend our national interest and maritime domain before an independent international tribunal.”

Asuque noted that other countries are already being asked to support the Philippines' cause. He said the country's ambassadors around the world were “instructed to seek the support of the host country or the international government organization to the efforts of the Philippine government to seek a peaceful and durable solution to the dispute in the West Philippine Sea.”

“We ask the countries to support the Philippine effort for a peaceful and durable solution…We’re asking them if they can convince their own political leaders that this is the right course of action taken by the Philippines as a peaceful way to resolve the dispute because this is prescribed under international law,” he said.