PH fights China before UN tribunal


Posted at Jul 07 2015 10:35 AM | Updated as of Jul 08 2015 06:10 AM

NETHERLANDS - The Philippines has assembled a crack international legal team to fight an unprecedented arbitration case under the United Nations' Convention on the Law of the Sea - ignoring growing pressure from Beijing to scrap the action.

An ABS-CBN Europe News Bureau report said members of the Philippine legal team stayed up late last night in The Hague, Netherlands to map out their legal strategy as they prepare to present the Philippines' case before the Arbitral Tribunal at the Permanent Court of Arbitration, Peace Palace.

In an announcement from Malacanang, the Palace said the Philippines will present its case regarding the matter of jurisdiction before the tribunal from 2:30 pm until 5:30 pm. (8:30 pm Manila time)

Solicitor General Florin Hilbay, as agent of the Philippines, will open the presentation. Foreign Affairs Secretary Albert del Rosario will speak on the reason for the filing of the Philippines' case. Thereafter, lawyers from Washington-based law firm Foley Hoag, led by Paul Reichler will present the arguments regarding jurisdiction.

The entire Philippine delegation will be present to witness the proceedings.

Members from the Executive, Legislature and Judiciary form part of the Philippine delegation, namely: Speaker Feliciano Belmonte, Executive Secretary Paquito N. Ochoa, Jr., Supreme Court Associate Justices Antonio Carpio and Francis Jardeleza, Defense Secretary Voltaire Gazmin, Justice Secretary Leila de Lima, Chief Presidential Legal Counsel Benjamin Caguioa, Sandiganbayan Justice Sarah Fernandez, Undersecretary Emmanuel Bautista, and Deputy Executive Secretary Menardo Guevara.

Deputy presidential spokesperson Abigail Valte earlier said the UN Permanent Court of Arbitration cannot compel China to participate in its deliberations even if it rules it has jurisdiction to hear the territorial dispute raised by the Philippine government against China.

China's foreign ministry has called the Philippines legal arbitration case against its claims in the South China Sea a "political provocation" aimed at denying Beijing's territorial rights.

The Philippines accused China of further encroachment when a naval frigate and two other ships steamed within five nautical miles of a dilapidated transport ship that Manila ran aground on Second Thomas Shoal in 1999 to mark its territory.

Manila's team is preparing arguments to show that the nine-dash line claim is invalid under the Law of the Sea. They are also seeking clarifications of the territorial limits, under the law, of rocks and shoals such as Scarborough - all part of a bid to confirm the Philippines' rights within its 200-nautical-mile exclusive economic zone.

The claims of the Philippines, Vietnam, Malaysia and Brunei are bisected by China's "nine-dash line" - the historic claim that reaches deep into the maritime heart of Southeast Asia. Manila filed the case in 2013 to seek a ruling on its right to exploit the South China Sea waters in its 200-nautical mile exclusive economic zone (EEZ) as allowed under the U.N. Convention on the Law of the Sea (UNCLOS).

While legally binding, any decision that favors the Philippines would be unenforceable because there is no U.N. body to police such rulings, legal experts said.

Nevertheless, such a ruling would be a diplomatic blow to Beijing and might prompt other claimants to the South China Sea to take similar action, legal experts and diplomats said.

The case is being closely watched by Asian governments and Washington given rising tensions in the South China Sea, especially in the Spratly archipelago, where China is creating seven artificial islands that will allow its navy to project power deep into the maritime heart of Southeast Asia.

China claims most of the waterway, including many reefs and shoals that Manila considers are within its EEZ. Parts of the EEZ contain rich fishing grounds and energy deposits.

Vietnam, Malaysia, Brunei and Taiwan also have claims to the South China Sea, through which $5 trillion in ship-borne trade passes every year.


Some international legal scholars and South China Sea experts said China was effectively taking part in the case even though it had officially refused to do so.

"It appears the tribunal panel is bending over backwards to accommodate China's interests and appear even-handed to both the Philippines and China," said Ian Storey, a South China Sea expert at Singapore's Institute of South East Asian Studies.

Experts said that did not mean the judges would find in Beijing's favor.

"They are being as fair as they can ... they seem to sense China will scrutinize every word in any final ruling," said one legal scholar following the case.

When asked to comment, tribunal officials referred Reuters to statements on its website.

Without China's permission, Manila cannot seek a ruling at the International Court of Justice in The Hague on the sovereignty of the disputed territory, legal scholars said.

Instead, Manila has invoked dispute settlement procedures under UNCLOS, a system that allows for arbitration even when one side objects and refuses to participate.

The Law of the Sea does not rule on sovereignty but it does outline a system of territory and economic zones that can be claimed from features such as islands, rocks and reefs.

The Chinese position paper last December said the "essence" of the Philippine case was sovereignty, and therefore beyond the scope of the tribunal.

Storey said the hearing on jurisdiction could delay any final ruling by six to 12 months, meaning the case could linger beyond the single term of Philippine President Benigno Aquino, which ends next June.

Aquino has been a key figure behind the legal challenge, at times drawing China's ire by comparing its South China Sea claims to Nazi Germany's expansionism before World War Two.


Chinese diplomats and legal experts have been following developments closely and taking outside opinions, according to sources with knowledge of Beijing's approach to the case.

Some of that work has been handled by the Chinese embassy at The Hague, which has established a formal line of communication with the tribunal, they said.

Tribunal statements and the rules of the case reviewed by Reuters confirm that China can communicate with the tribunal via its ambassador to The Hague, while the court also updates China on procedural moves and opportunities for submissions.

Despite the exchanges, China still planned to reject any decision that favored Manila, the sources said.

Chinese Foreign Ministry spokeswoman Hua Chunying told a regular briefing on Thursday that the "unilateral" arbitration was "a political provocation in the guise of law that seeks to deny China's national sovereignty in the South China Sea".

Charles Jose, the Philippine Foreign Ministry spokesman, disagreed: "The court is a fundamental first step towards a peaceful and rules-based resolution of the issue," he said.

Zha Daojiong, a political scientist at Peking University, said he believed Beijing's strategy of not taking part and then refusing to accept any judgement was set. With reports by ABS-CBN Europe News Bureau and Reuters.