PV: The Arbitral Tribunal has just issued a ruling regarding the role of historic rights and the source of maritime entitlements in the East Sea, the status of certain features and their maritime zones, as well as the legality of China’s actions that the Philippines considers to be in violation of the Convention. Could you please tell us the basic contents that the Philippines submitted to the Tribunal?
Associate Professor, Dr. Pham Quang Minh:First of all, to initiate a lawsuit under this mechanism, the Philippines must satisfy the following procedural conditions: First, prove that there is a dispute on the interpretation and application of UNCLOS between the Philippines and China; Second, have exchanged views on dispute resolution with China without reaching a result; Third, the two sides have not chosen any other dispute resolution mechanism in place of UNCLOS. China argues that the Philippines is not allowed to initiate a lawsuit because it has not fulfilled these conditions. However, in its ruling on jurisdiction, the Arbitral Tribunal affirmed that the Philippines has fulfilled the procedural conditions and recognized the Philippines' right to unilaterally initiate a lawsuit.
In terms of content, in order to file a lawsuit before the Arbitral Tribunal, the disputes that the Philippines filed must be disputes about the interpretation and implementation of UNCLOS, and must not fall within the exceptions that the Arbitral Tribunal does not have jurisdiction over. In the Statement of Arbitration submitted by the Philippines to the Tribunal, the Philippines requested the Tribunal to consider 15 submissions. In its judgment on jurisdiction dated October 29, 2015, the Tribunal rejected China's argument that this was a sovereignty or maritime delimitation dispute; and concluded that it had jurisdiction over seven of the Philippines' 15 submissions on issues including: Classification of nine entities; determination of the Philippines' maritime zones and traditional fishing rights at Scarborough Shoal (Huangyan); and China's violations of environmental protection and maritime safety. The remaining eight of the 15 submissions were on issues including: The nine-dash line; The determination of Mischief Reef and Second Thomas Shoal as belonging to the Exclusive Economic Zone (EEZ) and continental shelf of the Philippines, and other violations by China regarding fisheries and petroleum in the EEZ and continental shelf of the Philippines, as well as China's aggravation of the dispute will be further considered and concluded in the award on the merits of the case.
The basic contents that the Philippines submitted to the Court include four main groups of issues.One is,The Philippines requested the Tribunal to declare that China’s nine-dash line claim in the South China Sea is contrary to UNCLOS. The Tribunal concluded that there was no legal basis for China to claim historic rights to resources within the waters falling within the “nine-dash line.” Although Chinese navigators and fishermen, as well as those of other States, had historically exploited and used these areas in the South China Sea, there was no evidence that China had historically exercised exclusive control over the waters or their resources. Furthermore, China’s historic rights to resources falling within the “nine-dash line” were extinguished because they were inconsistent with the exclusive economic zone regime in the Convention. On that basis, the Arbitral Tribunal affirmed that China's claims of sovereignty, jurisdiction and "historic rights" over the maritime areas within the "nine-dash line" are contrary to the provisions of UNCLOS and have no legal value, because these claims exceed the maritime areas that China is entitled to under the provisions of UNCLOS.
Second,The Philippines requested the Arbitral Tribunal to clarify the legal status of certain features in the South China Sea. According to the Philippines, Mischief Reef, Second Thomas Shoal, Subi Reef, Gaven Reef, and McKennan Reef, including Hughes Reef, are “low-tide elevations,” meaning they are above water at low tide and submerged at high tide. Under UNCLOS, low-tide elevations are not entitled to territorial seas, exclusive economic zones, or continental shelves. Of the above-mentioned low-tide elevations, the Philippines requested the Arbitral Tribunal to determine that Mischief Reef and Second Thomas Shoal are within the Philippines’ EEZ and continental shelf.
In addition to the low-tide elevations, the Philippines also requested the Arbitral Tribunal to conclude that Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are simply “rocks” because they “cannot sustain human habitation or economic life of their own.” Therefore, they only have 12 nautical miles of territorial waters and are not entitled to the status of EEZ and continental shelf.
Third,The Philippines requests the Tribunal to declare certain recent activities of China in the South China Sea illegal. Specifically, China has unlawfully interfered with the enjoyment and exercise of the Philippines’ sovereign rights over the living and non-living resources in its EEZ and continental shelf. China’s interference with traditional fishing activities of Filipino fishermen at Scarborough Shoal and its efforts to prevent Filipino fishermen from pursuing their livelihoods is unlawful. China has violated its obligations under UNCLOS to protect and preserve the marine environment at Scarborough Shoal and Second Thomas Shoal. China’s occupation and construction activities at Mischief Reef violate the provisions of UNCLOS on artificial islands, installations and structures at sea; violate the obligations under UNCLOS to protect and preserve the marine environment; and are unlawful acts aimed at appropriating these features. China has breached its obligations under UNCLOS by deploying its law enforcement vessels in a dangerous manner, creating a serious risk of collision for Philippine vessels navigating around Scarborough Shoal. In addition, China has interfered with the Philippines’ right of passage and prevented resupply of Philippine troops on Second Thomas Shoal, endangering their health and morale.
Four is,The Philippines requests the Tribunal to conclude that China shall refrain from making further unlawful claims and activities in the future; refrain from continuing to make unlawful claims and conduct activities as the Philippines has listed in its complaint; China shall respect and refrain from further actions that violate the rights and freedoms of the Philippines in the future and shall respect its obligation to protect the environment; the features in the Spratlys shall have a maximum of 12 nautical miles of territorial sea, and no feature shall have a 200 nautical miles EEZ and continental shelf, so China shall not be allowed to claim an EEZ and continental shelf for these features.
PV: Could you please tell us, during the proceedings, what necessary measures did the Arbitral Tribunal take to verify the authenticity of the submissions made by the Philippines?
Associate Professor, Dr. Pham Quang Minh:Because China has a policy of “neither accepting nor participating in the arbitration process unilaterally initiated by the Philippines”, the Tribunal’s task is more onerous. This is reflected in the fact that, in addition to considering the matter comprehensively and objectively, the Tribunal must also consider the issues that China might raise if it participated. Therefore, the Tribunal has carefully considered all the evidence presented by the Philippines.
The Court raised many questions for the Philippines, requesting the Philippines to supplement and clarify many contents in the dossier submitted to the Court. The arbitrator appointed to represent China at the Arbitral Tribunal also raised many issues with both the Trial Panel and the Philippines to ensure that the final decision of the Tribunal is truly objective and reflects all the realities of the dispute. In addition, the Tribunal also appointed independent experts to report to the Tribunal on technical issues and collect historical evidence related to the structures in the East Sea and forward this evidence to the parties in the case for their comments.
PV: Why did the Court affirm that it has sufficient authority to try this case, Associate Professor, Doctor?
Associate Professor, Dr. Pham Quang Minh:In its Award on Jurisdiction of 29 October 2015, the Tribunal affirmed that the Tribunal was lawfully and properly constituted. This was based on Article 288 of the Convention, which provides that “In the event of a dispute as to whether a court or arbitral tribunal has jurisdiction, that question shall be decided by that court or arbitral tribunal”. During the proceedings on jurisdiction (July 2015), the issues relating to whether the Tribunal has jurisdiction were thoroughly discussed. Based on the results of the proceedings, on 29 October 2015, the Tribunal issued its Award on Jurisdiction, rejecting China’s contention that the Tribunal lacks jurisdiction. The Award was issued on12-7-2016resolve the remaining jurisdictional issues that the Court did not decide in its Judgment on Jurisdiction dated 29 October 2015.
It should also be added that, pursuant to Article 296 of the Convention and Article 11 of Annex VII, the judgment of12-7-2016legally binding and final on the disputing parties.
PV: Thank you very much, Associate Professor, Dr.
According to Hong Hanh, reporter of Nhan Dan Newspaper
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