UNCLOS | Prepys' Homepage

Vietnam delivered when the Philippines needed it most

December 15, 2014December 15, 2014 Ellen Leave a comment

Alliance forged. Pres. Aquino and Vietnam Prime Minister Nguyen Tan Dung in Malacanang May 2014.

It means a lot to the Philippines that Vietnam submitted a Position Paper to the Arbitral Tribunal of the United Nations that is handling the complaint filed by the Philippines against China on the conflict in the South China Sea.

Probably so as not to further antagonize China, with whom the Philippines has rekindled relations marked by the meeting of President Aquino with Chinese President Xi Jinping last month on the sidelines of the Asia Pacific Economic Cooperation summit, the statement of the Department of Foreign Affairs in reaction to the statement of Vietnam was sober.

The statement, released three days after Vietnam made public the Dec. 4 submission to the U.N. Arbitral Tribunal in The Hague, said: “PH has had close consultations with Vietnam, bilaterally as well as within ASEAN, on claims and issues in the South China Sea. We now understand that Vietnam has made its position on our arbitration case known to the Tribunal. This is not wholly unexpected, since Vietnam naturally seeks to protect its own interests. What we understand, however, consistent with our previous discussions, is that the Vietnam’s basic position largely accords with ours with regards to the South China Sea.

Chinese oil rig in Paracels in May 2014. It was removed two months after.

“As such, the Vietnamese position is helpful in terms of promoting the rule of law and in finding peaceful and nonviolent solutions to the South China Sea claims based on international law, including UNCLOS. This promotes peace and stability in our region.”

Asean diplomats in Vietnam were briefed about the submission to the Arbitral Court Dec. 5. Sources at the DFA said Vietnamese Ambassador Truong Trieu Duong met with Foreign Undersecretary Evan Garcia also on Friday and the latter profusely thanked the envoy.

What the Philippines was most happy about was that Vietnam underscored that the Tribunal has jurisdiction on the case and the decision on the Philippine case would help clarify legal issues on the conflict.

Aside from China, Philippines and Vietnam, Brunei, Malaysia and Taiwan are also claiming parts of the South China Sea.

It is in the issue of jurisdiction that even Philippine experts on the U.N. Convention on the Law of the Sea (UNCLOS) are concerned about because the issues raised by the Philippines could be interpreted as matters of territorial dispute and sovereignty, which are outside the scope of the Arbitral Court.

Territorial disputes are under the jurisdiction of the International Court of Justice, which requires the participation of parties involved in the case. China has refused to participate in the international arbitration and prefers bilateral negotiation.

Lack of jurisdiction of the Arbitral Court in the Philippine complaint was stressed by China in its Dec. 7 Position Paper, released three days after Vietnam submitted its statement in The Hague.

“It is the view of China that the Arbitral Tribunal manifestly has no jurisdiction over this arbitration, unilaterally initiated by the Philippines, with regard to disputes between China and the Philippines in the South China Sea,” China said.

Jurisdiction is the Achilles heel of the Philippine suit. The Philippine legal team feels it had remedied that concern because it is not asking the Arbitral Tribunal to rule on who owns Scarborough Shoal or Mischief reef or any of the disputed features in the South China Sea.

The Philippine suit merely asked the Arbitral Court to rule on three basic issues: the validity of China’s nine-dash lines; Low tide elevations where China has built permanent structures should be declared as forming part of the Philippine Continental shelf; and that the waters outside the 12 nautical miles surrounding the Panatag Island (Scarborough shoal) should be declared as part of the Philippines Exclusive Economic Zone.

Vietnam also said it supports the competence of the Arbitral Tribunal in interpreting the provisions of UNCLOS in respect to construction of structures and artificial islands in the EEZ and continental shelves of coastal states.

In a briefing with reporters early this year, then Solicitor General (now Supreme Court Associate Justice) Francis Jardeleza said the Court acceded to their request that they rule on both the jurisdiction and merits of the case.

He said: “There’s so much tactical advantage to that procedure because we are very strong on the merits and by discussing the merits more and more you gain an advantage hoping to convince the tribunal that they should take the case and rule that they have jurisdiction.”

The day after Vietnam submitted its position paper to the Arbitral Tribunal, the U.S. Department of State released a report by Office of Ocean and Polar Affairs, Bureau of Oceans and International Environmental and Scientific Affairs on China’s maritime claim in the South China Sea.

The report ripped apart China’s nine –dashed line map, the number one item in the Philippine complaint.
The report concluded: “…unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the LOS Convention, its dashed-line claim does not accord with the international law of the sea.”

The submission of Vietnam of its position paper with the Arbitral Court and the release of the U.S. report on China’s nine-dash line map are not a coincidence. The Arbitral Court has given China until today, Dec. 15, to submit its comments to the Philippine complaint in the Arbitral Court. With or without China’s participation, the Arbitral Court will proceed with the hearings.

Vietnam supports PH position: UN tribunal has jurisdiction on South China Sea dispute

December 13, 2014December 13, 2014 Ellen Leave a comment

Water cannon fight in Paracels between China and Vietnam last May.

By Ellen T. Tordesillas, VERA Files

The Philippine case against China’s nine-dash line before the United Nations Arbitral Tribunal gained support from Vietnam in a statement it submitted to the court in The Hague on Thursday.

The Vietnam Foreign Ministry said the tribunal has jurisdiction to settle disputes concerning the interpretation of the U.N. Convention on the Law of the Sea.

In a press briefing Thursday, Vietnam Foreign Ministry Spokesperson Le Hai Binh said: “To protect its legal rights and interests in the East Sea which may be affected in the South China Sea Arbitration case, Vietnam has expressed its position to the Tribunal regarding this case, and requested the Tribunal to pay due attention to the legal rights and interests of Vietnam.”

These include Vietnam’s rights and interests over geographical features of the Paracel Islands and Spratly islands, he said. China calls the Paracel Islands Xisha and Vietnam, Hoàng Sa. Spratlys is known as Nansha in China, Truong Sa in Vietnam and Kalayaan in the Philippines.

“It is Vietnam’s consistent position to fully reject China’s claim over the Hoang Sa and Truong Sa archipelagoes and the adjacent waters, as well as China’s claiming of ‘historic rights’ to the waters, sea-bed and subsoil within the ‘dotted line’ unilaterally stated by China,” the Vietnamese spokesperson said.
Vietnam’s submission in the U.N. court was made a day before the United States Department of State released a 26-page report titled “Limits in the Seas – China Maritime Claims in the South China Sea.”

Philippine Foreign Affairs Spokesman Charles Jose said Manila is still studying Vietnam’s submission and “its possible implications.”

A source in the Department of Foreign Affairs, however said, they are “very thankful” to Vietnam.

Last Sunday, China released a statement insisting that the U.N. Arbitral Tribunal has no jurisdiction on the complaint filed by the Philippines in January 2013 seeking a ruling on three basic issues:

1. The validity of China’s 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. The waters outside the 12 nautical miles surrounding the Panatag Island (Scarborough Shoal) should be declared as part of the Philippines Economic Exclusive Zones ( EEZ)

China said the essence of the Philippine complaint is “the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention.”

China has until Dec. 15 to answer the Philippine complaint in court. In its position paper, China reiterated its stand not to participate in the U.N. proceedings.

China claims almost the whole of South China Sea, parts of which are also being claimed by the Philippines, Vietnam, Malaysia, Brunei and Taiwan.

The Philippines does not claim Paracel islands, scene of several fierce clashes between China and Vietnam.
Vietnam also said it believes the Tribunal has the competence to interpret the provisions in the Convention with respect to the construction of artificial islands in the EEZ and Continental Shelves of coastal states.
Vietnam reiterated its earlier declaration that it reserves the right to intervene in the U.N. Court if it is appropriate.

Reacting to Vietnam’s statement before the U.N. Tribunal, China’s Foreign Ministry Spokesperson Hong Lei said, “The Chinese side urges the Vietnamese side to earnestly respect China’s territorial sovereignty and maritime rights and interests, work with China to resolve relevant disputes over the Nansha Islands through consultation and negotiation on the basis of respecting historical facts and international law so as to jointly safeguard peace and stability in the South China Sea.”

He added: “China will stick to its principled position of neither accepting nor participating in the South China Sea arbitration unilaterally initiated by the Philippines… China’s position will not change. “

Earlier, China slammed the U.S. on the report on maritime claims in the South China Sea.
“The United States has violated its commitment of not holding a position and not taking sides in the South China Sea issue, such a move is inconducive to the resolution of the South China Sea disputes and the peace and stability of the South China Sea,” Hong said.

(VERA Files is put out by veteran journalists taking a deeper look at current issues. Vera is Latin for “true.”)

China’s position paper shows wide gap with PH stand

December 11, 2014December 11, 2014 Ellen Leave a comment

Pres. Aquino and Pres. Xi Jinping, Beijing Nov 2014

The Position Paper of China on the case filed by the Philippines with the United Nations Arbitral Tribunal showed the wide gap between the two countries as regards their conflicting claims on th South China Sea islands, reefs and rocks.

The meeting between President Aquino and Chinese President Xi Jinping may have lowered the tension but the two countries are really far apart in attitude and perspective.

Example:

Before the meeting of Leaders of the Asia Pacific Economic Cooperation in Beijing last month, Foreign Secretary Albert del Rosario said their bringing unilaterally the territorial conflict with China before the U.N. court is not an unfriendly act.

China has refused to participate in the U.N. suit, the first ever filed against the economic superpower, insisting instead on bilateral negotations which the Philippines shunned.

“We precisely selected arbitration because, as was defined by the United Nations, it is not an unfriendly act. It is, as a matter of fact, one that we are utilizing to be able to preserve a valuable friendship,” del Rosario said.

That’s not how China sees it.

In it’s position paper released a week before the Dec 15 deadline set by the U.N. court for China to submit a comment on the Philippine complaint, China said if both parties in the conflict agreed to bring the issue for arbitration to the U.N., that is not an unfriendly act. But that is not the case with the Philippine complaint.

” China does not consider submission by agreement of a dispute to arbitration as an unfriendly act. In respect of disputes of territorial sovereignty and maritime rights, unilateral resort to compulsory arbitration against another State, however, cannot be taken as a friendly act, when the initiating State is fully aware of the opposition of the other State to the action and the existing agreement between them on dispute settlement through negotiations.

“Furthermore, such action cannot be regarded as in conformity with the rule of law, as it runs counter to the basic rules and principles of international law. It will not in any way facilitate a proper settlement of the dispute between the two countries.
Instead it will undermine mutual trust and further complicate the bilateral relations.”

The 27-page Position Paper repeatedly and consistently underscored the lack of jurisdiction of the U.N. Arbitral Court on the Philippine suit.

The U.N Arbitral Court is not for territorial disputes and conflicts concerning a country’s sovereignty which are under the jurisdiction of the International Court of Justice (ICJ).

In the ICJ, however, both countries should agree to bring their conflict for arbitration.

The U.N. International Tribunal on the Law of Sea deals with interpretation of the U.N. Convention on the Law of the Sea signed by 165 countries including the Philippines and China.

China said accused the Philippines of circumventing the limitations of U.N. Arbitral Court.” In an attempt to circumvent this jurisdictional hurdle and fabricate a basis for institution of arbitral proceedings, the Philippines has cunningly packaged its case in the present form. It has repeatedly professed that it does not seek from the Arbitral Tribunal a determination of territorial sovereignty over certain maritime features claimed by both countries, but rather a ruling on the compatibility of China’s maritime claims with the provisions of the Convention, so that its claims for arbitration would appear to be concerned with the interpretation or application of the Convention, not with the sovereignty over those maritime features. This contrived packaging, however, fails to conceal the very essence of the subject-matter of the arbitration, namely, the territorial sovereignty over certain maritime features in the South China Sea.”

China summarized the Philippine position thus:

First, China’s assertion of the “historic rights” to the waters, sea-bed and subsoil within the “nine-dash line” (i.e., China’s dotted line in the South China Sea) beyond the limits of its entitlements under the Convention is inconsistent with the Convention.

Second, China’s claim to entitlements of 200 nautical miles and more, based on certain rocks, low-tide elevations and submerged features in the South China Sea, is inconsistent with the Convention.

Third, China’s assertion and exercise of rights in the South China Sea have unlawfully interfered with the sovereign rights, jurisdiction and rights and freedom of navigation that the Philippines enjoys and exercises under the Convention.

China said the essence of the the Philippine suit is the territorial sovereignty over several maritime features in the South China Sea, which does not concern the interpretation or application of the Convention.

China: UN tribunal has no jurisdiction on case filed by PH

December 8, 2014December 8, 2014 Ellen Leave a comment

By Ellen Tordesillas, VERA Files

China insisted Sunday that the United Nations Arbitral Tribunal has no jurisdiction on the complaint filed by the Philippines seeking to declare null and void the nine-dash line on China’s maps.

China’s 27-page position paper, posted on the website of its Ministry of Foreign Affairs, came eight days before the Dec. 15 deadline given by the U.N. court for Beijing to answer the Philippine complaint filed on Jan. 22, 2013.

With or without China’s reply, the U.N. court will start the hearings.

The U.N. Arbitral Tribunal is a mechanism provided in the U.N. Convention on the Law of the SEA (UNCLOS), which defines the rights and responsibilities of nations with respect to their use of the world’s oceans.

The Convention, signed by 165 countries, including the Philippines and China, establishes guidelines for businesses, the environment and the management of marine natural resources.

China, which has refused to participate in the U.N. proceedings, stressed that the position paper should not be regarded as its acceptance of or participation in the arbitration.

Beijing raised four main points in declaring the U.N. tribunal’s lack of jurisdiction over Manila’s complaint.

It said:

1. The issues raised by the Philippines concern the territorial sovereignty over several maritime features in the South China Sea and not the interpretation or application of UNCLOS.

2. China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. By unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law.

3. The issues raised in the Philippine complaint fall within the reservations China made when it ratified UNCLOS in 2006 which include maritime delimitation.

4. Since the Philippine complaint is outside the jurisdiction of the U.N. Arbitral Court, China’s rejection of and nonparticipation in the present arbitration stand on solid ground in international law.

The position paper commented on the three main categories in the Philippine complaint.

First: China’s assertion of the “historic rights” to the waters, seabed and subsoil within the “nine-dash line” (i.e., China’s dotted line in the South China Sea) beyond the limits of its entitlements under the Convention is inconsistent with the Convention.

China’s reply: The core of those claims is that China’s maritime claims in the South China Sea have exceeded the extent allowed under the Convention. However, only after the extent of China’s territorial sovereignty in the South China Sea is determined can a decision be made on whether China’s maritime claims in the South China Sea have exceeded the extent allowed under the Convention.

Second: China’s claim to entitlements of 200 nautical miles and more, based on certain rocks, low-tide elevations and submerged features in the South China Sea, is inconsistent with the Convention.

China’s reply: China believes that the nature and maritime entitlements of certain maritime features in the South China Sea cannot be considered in isolation from the issue of sovereignty….Whether low-tide elevations can be appropriated as territory is in itself a question of territorial sovereignty, not a matter concerning the interpretation or application of the Convention.

Third: China’s assertion and exercise of rights in the South China Sea have unlawfully interfered with the sovereign rights, jurisdiction and rights and freedom of navigation that the Philippines enjoys and exercises under the Convention.

China’s reply: The premise for this claim must be that the spatial extent of the Philippines’ maritime jurisdiction is defined and undisputed, and that China’s actions have encroached upon such defined areas. China and the Philippines have not delimited the maritime space between them. Until and unless the sovereignty over the relevant maritime features is ascertained and maritime delimitation completed, this category of claims of the Philippines cannot be decided upon. It should be particularly emphasized that China always respects the freedom of navigation and overflight enjoyed by all States in the South China Sea in accordance with international law.

China accused the Philippines of circumventing UNCLOS’ lack of jurisdiction over territorial disputes.

It said: “The Philippines has cunningly packaged its case in the present form. It has repeatedly professed that it does not seek from the Arbitral Tribunal a determination of territorial sovereignty over certain maritime features claimed by both countries, but rather a ruling on the compatibility of China’s maritime claims with the provisions of the Convention, so that its claims for arbitration would appear to be concerned with the interpretation or application of the Convention, not with the sovereignty over those maritime features. This contrived packaging, however, fails to conceal the very essence of the subject-matter of the arbitration, namely, the territorial sovereignty over certain maritime features in the South China Sea.”

(VERA Files is put out by veteran journalists taking a deeper look at current issues. Vera is Latin for “true.”)

China's Position Paper on PH-Initiated Arbitration Case over South China Sea dispute