DFA: UN tribunal convenes on sea row

MANILA, Philippines - The Philippines’ arbitral proceedings against China are now officially under way, the Department of Foreign Affairs (DFA) and the Office of the Solicitor General (OSG) announced yesterday.

DFA spokesman Raul Hernandez said the Arbitral Tribunal that has been appointed to hear the case of the Philippines under Annex 7 of the 1982 UN Convention on the Law of the Sea (UNCLOS), challenging China’s territorial claims in the South China Sea, was formally constituted and held its first meeting on July 11 at The Hague, Netherlands.

At their first meeting on July 11, the president and members of the Tribunal designated The Hague as the seat of the arbitration and the Permanent Court of Arbitration as the Registry for the proceedings.

The parties had previously been requested to submit their views on these two matters, and the Philippines consented to both.

Speaking during a breakfast forum of the Foreign Correspondents Association of the Philippines, to Washington Jose Cuisia  Jr. said yesterday US stand of defense of freedom of navigation and peaceful settlement of disputes through legal mechanisms, including arbitration, bolsters the Philippines’ principled positions with regards to the disputes in the West Philippine Sea (South China Sea).

“The strategic imperative to engage with Asia has underscored the important role of the Philippines as a key US ally in the region. On our part, increased US interest also opens specific opportunities for us,” he said.

“In terms of our national security, the assistance they are providing augments our own national efforts to strengthen our defense capabilities.”

Cuisia said tthe end of US President Barack Obama’s first term, the US had made significant progress in re-establishing its presence in the Asia Pacific region.

“Bilaterally, the US has reinvigorated its relations with its treaty allies in the region, particularly Japan, Korea, Thailand and the Philippines,” he said.

Cuisia said the Philippines and the US have clearly congruent security interests in the Asia Pacific region as both countries recognize that economic stability needs to be premised on a secure and predictable security environment.

“As ambassador to the US, my team aims to contribute to building a minimum credible defense posture, to serve as deterrent to any aggressive action that may be taken against the Philippines,” he said.

“We work closely with the United States, our country’s only treaty ally, on mechanisms that will ensure that our security arrangements remain relevant and mutually beneficial,” he said.

“We are working closely with the DFA, the Department of National Defense, and other concerned agencies to come up with arrangements that will not only strengthen existing cooperation but also open up new areas of engagement in terms of humanitarian assistance and disaster relief, more trainings, etc.”

Cuisia said the pace and substance of dialogue has also intensified as well as a significant increase in foreign military financing, from less than $12 million in 2011 to $27 million in 2012.

“Clearly, we were on a very positive trajectory in terms of the bilateral relations at the end of President Obama’s first term,” he said.

“This now leads to the next question, of whether we can sustain this in the second Obama administration.” 

Cuisia said while developments in the Middle East appear to demand the time and energies of US policy makers, the general consensus is that the rebalance to Asia continues to have the personal support of Obama.

At the same time, mechanisms to support the rebalance have also been institutionalized in the State Department and the Pentagon, he added.

The DFA said the Arbitral Tribunal also approved during their first meeting a draft set of Rules of Procedure to govern the proceedings, and sent it to the parties for their comments.

This request also called for the parties to propose a schedule for the submission of their written pleadings.

Hernandez said the Philippine government and its counsel are now studying the draft rules of procedure, and will submit comments and a proposed schedule for the written pleadings as requested by the Tribunal.

“The Philippine government is pleased that the Arbitral Tribunal is now formally constituted, and that the arbitration process has begun,” he said.

“The Department and the OSG have pledged their fullest cooperation with the Tribunal, in order to assure a fair, impartial and efficient process that produces a final and binding judgment in conformity with international law.”

“The DFA will issue statements from time to time to keep the public informed about the progress of the arbitration,” Hernandez said.

Information will also be made available to the public on the website of the Permanent Court of Arbitration: www.pca-cpa.org.

The Philippines initiated arbitral proceedings under the UNCLOS to clarify the country’s maritime entitlements in the West Philippine Sea (South China Sea).

The case concerns China’s interpretation and application of UNCLOS, specifically its nine-dash line claim which interferes with the lawful exercise by the Philippines of its sovereign rights and jurisdiction in its exclusive economic zone and continental shelf.

China lays claim to nearly the entire South China Sea and the East Sea. The area, delineated by a so-called nine-dash line, covers over 100 islets, atolls and reefs.

Arbitration under Annex VII and Part XV of UNCLOS is considered a peaceful and durable way of resolving maritime disputes.

Member states of the United Nations, through General Assembly resolution 37/10, have declared that arbitration is not an unfriendly act.

Hernandez said the five-member Arbitral Tribunal will organize itself and establish its own rules, and determine whether it has jurisdiction to hear the case.

“They will publicly announce this,” he said.

“What has now happened is they have formally constituted and have also set the rules and this draft set of rules of procedures has been given to the parties concerned for their comments. This signals that the arbitral proceeding is already underway.”

Hernandez said the tribunal will proceed with the case always in consultations with parties concerned. “That is why in every step of the way both the Philippines and China are asked for their proposals,” he said.

“We brought this case because we feel we have a big advantage considering the provisions of international law, particularly UCLOS. It has always been our position that the nine-dash line claim of China has been excessive, expansive and illegal as far as international law is concerned.” 

Last week, Foreign Affairs Secretary Albert del Rosario said during the forum “Managing the South China Sea and Other Regional Security Issues” and the “Experts’ Roundtable on Regional Approaches to Maritime Security in the West Philippine Sea/South China Sea” at the Brussels Press Club that “the Philippines had undertaken many efforts to peacefully engage China and settle these disputes but these were unsuccessful.”

“The Philippines had exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of its maritime dispute with China,” he said. “The last resort when confronted with increasing incursions into its territory was to utilize the legal track which also covered the management of disputes.”

Del Rosario said the rules-based resolution and management of disputes in the South China Sea contains two elements: the third-party arbitration of maritime claims, in accordance with the universally recognized principles of international law, specifically UNCLOS; and the early conclusion of a Code of Conduct (COC) on the South China Sea between the Association of Southeast Asian Nations (ASEAN) and China.

Despite several invitations, China has declined to join the Philippines in this peaceful endeavor.

China’s claim of indisputable sovereignty over the entire South China Sea is the core issue of the dispute and its excessive claim is in violation of international law.