Friday, October 30, 2015

Philippines scores against China in UN arbitration | Inquirer News





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The Philippines scored a victory at the international Arbitral Tribunal after the panel unanimously decided Thursday that it has jurisdiction over the maritime dispute between China and the Philippines involving parts of the South China Sea (West Philippine Sea.)

The decision means that the tribunal, convened under the provisions of the United Nations Convention on the Law of the Sea (UNCLOS), will hold further hearings to settle the increasingly contentious dispute.


A nine-page press release issued by the Permanent Court of Arbitration “on behalf of the Arbitral Tribunal in the Philippines v. China arbitration” clarified that the dispute was not about sovereignty, as China has claimed.


“This arbitration concerns the role of ‘historic rights’ and the source of maritime entitlements in the South China Sea, the status of certain maritime features in the South China Sea and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China in the South China Sea that are alleged by the Philippines to violate the Convention.”

The panel concluded that it had jurisdiction over the case.


“The Tribunal’s Award of today’s date is unanimous and concerns only whether the Tribunal has jurisdiction to consider the Philippines’ claims and whether such claims are admissible. The Award does not decide any aspect of the merits of the Parties’ dispute. In its Award, the Tribunal has held that both the Philippines and China are parties to the Convention and bound by its provisions on the settlement of disputes. The Tribunal has also held that China’s decision not to participate in these proceedings does not deprive the Tribunal of jurisdiction and that the Philippines’ decision to commence arbitration unilaterally was not an abuse of the Convention’s dispute settlement procedures.”

The tribunal expects to “render its Award on the merits and remaining jurisdictional issues in 2016.”

The announcement from The Hague noted that the following 10 findings or conclusions of the tribunal were all “unanimous decisions.”

1. FINDS that the Tribunal was properly constituted in accordance with Annex VII to the Convention.

2. FINDS that China’s non-appearance in these proceedings does not deprive the Tribunal of jurisdiction.

3. FINDS that the Philippines’ act of initiating this arbitration did not constitute an abuse of process.

4. FINDS that there is no indispensable third party whose absence deprives the Tribunal of jurisdiction.

5. FINDS that the 2002 China–ASEAN Declaration on Conduct of the Parties in the South China Sea, the joint statements of the Parties referred to in paragraphs 231 to 232 of this Award, the Treaty of Amity and Cooperation in Southeast Asia, and the Convention on Biological Diversity, do not preclude, under Articles 281 or 282 of the Convention, recourse to the compulsory dispute settlement procedures available under Section 2 of Part XV of the Convention.

6. FINDS that the Parties have exchanged views as required by Article 283 of the Convention.

7. FINDS that the Tribunal has jurisdiction to consider the Philippines’ Submissions No. 3, 4, 6, 7, 10, 11, and 13, subject to the conditions noted in paragraphs 400, 401, 403, 404, 407, 408, and 410 of this Award.

8. FINDS that a determination of whether the Tribunal has jurisdiction to consider the Philippines’ Submissions No. 1, 2, 5, 8, 9, 12, and 14 would involve consideration of issues that do not possess an exclusively preliminary character, and accordingly RESERVES consideration of its jurisdiction to rule on Submissions No. 1, 2, 5, 8, 9, 12, and 14 to the merits phase.

9. DIRECTS the Philippines to clarify the content and narrow the scope of its Submission 15 and RESERVES consideration of its jurisdiction over Submission No. 15 to the merits phase.

10. RESERVES for further consideration and directions all issues not decided in this Award.

The panel is led by Judge Thomas A. Mensah of Ghana as President of the Tribunal; its members include Judges Jean-Pierre Cot (France), Stanislaw Pawlak (Poland), and Rüdiger Wolfrum (Germany), and Prof. Alfred Soons (Netherlands). - JN.

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