Philippines sums up arbitration case vs China

Concluding remarks of Secretary of Foreign Affairs Albert del Rosario before the Permanent Court of Arbitration in The Hague

(Second of three parts)

MANILA, Philippines - 14. We believe this arbitration benefits everyone. For China, it will define and clarify its maritime entitlements.

For the Philippines it will clarify what is ours, specifically our fishing rights, rights to resources and rights to enforce our laws within our EEZ. And for the rest of the international community, it will help ensure peace, security, stability and freedom of navigation and overflight in the South China Sea.

15. We also believe that this arbitration will be instructive for other States to consider the dispute settlement mechanisms under UNCLOS as an option for resolving disputes in a peaceful manner.

16. Mr. President, distinguished Members of the Tribunal, the Philippines more than anyone is mindful of the fact that your October Award on Jurisdiction was not the end of the story. Several jurisdictional questions were joined to these hearings on the merits.

 17. We trust that last week and again today, our counsel have resolved any lingering jurisdictional concerns you may have. In our view, the Tribunal’s jurisdiction could not be clearer with respect to declaring that China’s claim to “historic rights” in the areas encompassed by the nine-dash line is inconsistent with UNCLOS. Mr. Reichler showed last Tuesday that the historic rights that China claims are very different from a claim to “historic title” that might be precluded from jurisdiction under Article 298.

18. On the substance of the matter, professor Oxman and Mr. Loewenstein showed that the regimes of the continental shelf and exclusive economic zone under UNCLOS, and even general international law, plainly exclude China’s claim of “historic rights” within the nine-dash line.

Mr. President, I am not a lawyer. But in my mind, when the Convention says that the Philippines’ rights in its continental shelf exist ipso facto and ab initio, and do not depend on occupation, that means there is no room for China’s claim. And when the Convention speaks of an “exclusive” economic zone, I take exclusive to mean exclusive. That means it is ours, and what is ours is ours, not China’s.

19. On Wednesday morning, professor Sands showed why we so desperately need your guidance. With an assertiveness that is growing with every passing day, China is preventing us from carrying out even the most basic exploration and exploitation activities in areas where only the Philippines can possibly have rights.

20. The preamble to the UN Charter states (and I quote)

“WE THE PEOPLES OF THE UNITED NATIONS DETERMINED…

“to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

“to promote social progress and better standards of life in larger freedom,”(end of quote)

21. China is failing on both counts. It is failing to respect the obligations arising from treaties, specifically UNCLOS. It is also interfering with the Philippines’ sovereign duty to promote the social progress of our people, and our efforts to achieve a better standard of life for all Filipinos.

22. China is not just interfering with the progress of the Filipino people. China’s unilateral actions, and the atmosphere of intimidation they have created, are also trampling upon the rights and interests of the peoples of Southeast Asia and beyond.

23. China’s massive island building campaign shows its utter disregard for the rights of other States, and for international law. China started this a year after the Philippines initiated the arbitration. It is intent on changing unilaterally the status quo in the region, imposing China’s illegal nine-dash line claim by fiat and presenting this Tribunal with a fait accompli.

24. China’s island building not only undermines regional stability, but also  the rule of law. It is moreover inflicting massive environmental damage on the most diverse marine environment in the world.

China has intentionally created one of the biggest emerging environmental disasters in the world.

25. Yet, the stakes are still greater. The Convention’s “Constitution for the Oceans” is itself at risk. No State, no matter how powerful, should be allowed to claim an entire sea as its own and to use force or the threat of force in asserting that claim. No State should be permitted to write and re-write the rules in order to justify its expansionist agenda. If that is allowed, the Convention itself would be deemed useless.  Power will have prevailed over reason, and the rule of law would have been rendered meaningless.

26. We trust that our counsel have made it equally clear that there is no issue of overlapping entitlements beyond 12 M in the South China Sea.

Mr. Reichler and Professor Schofield showed that there is no feature in the Spratly Islands that can sustain human habitation or an economic life of its own.  There is therefore no feature that can generate an EEZ or continental shelf. Mr. Reichler called Itu Aba a “Potemkin Island.”

 (To be continued)