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Why the Philippines will bring the South China Sea conflict to the UN

January 23, 2013

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The Philippine Department of Foreign Affairs has just released the following to explain to Filipinos its actions on the South China Sea (West Philippine Sea) conflict. To the Philippines, “China is a good friend. Arbitration is a peaceful and amicable process to settle a dispute between and among friends. “

Q & A on the UNCLOS Arbitral Proceedings against China to Achieve a Peaceful and Durable Solution to the Dispute in the West Philippine Sea

1.Why are we bringing China to an arbitral tribunal?

China’s 9-dash line claim encompasses practically the entire West Philippine Sea (WPS). We must challenge the unlawful claim of China under their 9-dash line in order to protect our national territory and maritime domain.

2.Why do we have to do this now?

Having exhausted all possible initiatives, we feel the time to act is now. If we do not act now, we will be in default.

3.What is the basis of our legal action?

The legal action is pursuant to the President’s constitutional mandate to pursue the national interest and defend the Philippine territory and maritime domain. It also pursues the policy of a rules-based approach based on international law, especially UNCLOS, in resolving the disputes in the WPS.

4.What do we expect from this arbitral tribunal?

We hope that the arbitral tribunal will issue an award in accordance with international law that will direct China to respect our sovereign rights and jurisdiction over our EEZ, continental shelf, contiguous zone, and territorial sea over the West Philippine Sea, and to desist from undertaking unlawful acts that violate our rights.

5.What is the process of arbitration?
Under Annex VII of UNCLOS, the arbitration process begins by notifying the other party to the dispute and giving a statement of facts on which the notification is based.

In accordance with this process, the Philippines through the DFA handed the Note Verbale to the Chinese Ambassador in Manila in the afternoon of 22 January 2013 notifying China that the Philippines is bringing the dispute in the WPS before an arbitral tribunal under Annex VII of UNCLOS.

The next step is to form the 5-member arbitration panel. When the panel is formed, the parties will present their documents to further explain their case.

6.Is the legal track the only option?

We have adopted three tracks in terms of the political, diplomatic and legal approaches. At this stage, the legal track presents the most durable option to defend the national interest and territory on the basis of international law.

7.Who filed the case and where?

The Philippines filed the arbitration case against China. The parties will have to agree on the place where the arbitral tribunal will hold the hearing of the case.

Under UNCLOS, Parties to a dispute have the choice on where to file the case, either in the International Court of Justice, ITLOS, arbitral tribunal and special arbitral tribunal. The Philippines chose to bring this case before the arbitral tribunal because it believes it is the appropriate body to hear the complaint of the Philippines against China.

8.How long will the arbitration process last?

Based on the cases so far handled by international tribunals on maritime disputes, the case would take 3-4 years.

9.Will we win our case?

We believe we have a very good case under international law. In any legal action, however, there are many different factors to consider. What is more important is that we are able to present our case against China and defend our national interest and maritime domain before an independent international tribunal. We expect international law to be the great equalizer.

10.Who are the members of the PH legal team?

Solicitor General Francis H. Jardeleza is the agent or the legal representative of the Philippines in this arbitration case. Mr. Paul Reichler of the Washington law firm Foley and Hoag is the lead counsel.

11.Why are the other countries not filing a case against China?

The Philippines is taking action based on its national interest and not on the actions or non-action of other countries.

12.What if China refuses to participate in the arbitration?

The Philippines will pursue the procedures and remedies available under Annex VII of UNCLOS to achieve the award outlined in the Statement of Claim.

Annex VII of UNCLOS provides for compulsory proceedings with binding decision.

13.What’s next for the Philippines?

The Philippines will now prepare for the formation of the 5-member arbitration panel and agree on the venue.

14.Do you have the support of the other branches of the government?

Yes, all the three branches of the Philippine Government support the President’s decision to bring the dispute in the West Philippine Sea before the UNCLOS arbitral tribunal.

15.What will be the effects on Philippines-China economic relations?
As arbitration is friendly and peaceful, we hope that there will be no adverse effects on our trade with China. President Aquino and President Hu Jintao agreed that the bilateral agenda will be moved forward while contentious issues will be abstracted for separate treatment.

We are all for improving our economic relations with China but it should not be at the expense of surrendering our national sovereignty.

16.What will be the effects on tourism?

The Philippines and China have an incredible people-to-people engagement. We look forward to enhance it through an effective tourism program.

17.What will happen to our OFWs who may be affected by this action?

The Philippine Government will provide the appropriate safety net for the OFWs.

18.Did the US and Japan influence your decision to take this action?

No. The Philippines is taking this action independently.

19.What are the opinions of the different sectors in Philippine society?

While there are varied opinions on the dispute, nevertheless, all Filipinos should unite to support the President’s constitutional mandate to protect Philippine territory and national interest.

20. Will this result into a military conflict?

China is a good friend. Arbitration is a peaceful and amicable process to settle a dispute between and among friends.

21.What will happen to PH-China relations?

We will continue to pursue an enhancement of our bilateral relations in all areas of cooperation.

22.Would this action affect ASEAN?

We are counting on ASEAN to support us in finding a peaceful and durable solution to the dispute. The Philippines must protect its own national interest in this regional forum as well as in other fora in order to enhance the respect of our international partners who support our cause.

23.Would discussions on the Code of Conduct (CoC) continue?

Yes, the Philippines will continue to work with ASEAN and China in crafting the Code of Conduct and implement the commitments of ASEAN Member States and China in the Declaration on the Conduct of Parties in the South China Sea (DOC).

24.Why can we not do joint development with China?

Joint development, following the Chinese model, is a violation of the Philippine Constitution. Joint development should be in accordance with Philippine law.

25.How much will this cost the Filipino people?

One cannot put a price in the concerted effort of the Filipino people and government in defending our patrimony, territory, national interest and national honor.

26.Why should the Filipinos support this action?

If someone forces himself into your house and tries to unlawfully take away what belongs to you, should you not take action against the intruder? Our action is in defense of our national territory and maritime domain.

27.How can all Filipinos help in promoting a positive result of this legal initiative?

All Filipinos should stand behind the President to defend what is ours in accordance with the Philippine Constitution. We should all firmly demonstrate our patriotism. We should all stand united as one before the whole world to manifest the President’s leadership on this issue.

Tagged With: ITLOS, South China Sea conflict, West Philippine Sea

Comments

  1. Mel says

    March 25, 2013 at 9:24 PM

    Sea tribunal names judge to PH arbitration case vs China over Spratlys area

    By Tarra Quismundo
    Philippine Daily Inquirer
    9:04 pm | Monday, March 25th, 2013

    MANILA, Philippines — The Philippines’ arbitration case against China has moved a step forward after the president of the International Tribunal for the Law of the Sea (Itlos) appointed the second member of the ad hoc tribunal that would deliberate on the country’s bid to stop Chinese incursions into the West Philippine Sea (South China Sea).

    The Department of Foreign Affairs (DFA) confirmed on Monday that the Itlos president, Judge Shunji Yanai, appointed Polish Itlos Judge Stanislaw Pawlak to the panel last week, leaving only three more slots to be filled in the tribunal.

    Pawlak will join the panel with German Judge Rudiger Wolfrum, the arbiter appointed by the Philippines when it announced its arbitration bid in January.

    The Polish judge’s appointment is the first for Yanai, who took on the task of composing the arbitral panel after China announced its rejection of the proceedings.

    Under the United Nations Convention on the Law of the Sea (Unclos), the international law the Philippines invoked in seeking arbitration, the Itlos president has the power to appoint members of the panel in case one party refuses to take part in the proceedings.

    China waived its right to name its representatives to the ad hoc panel upon formally announcing its rejection of the proceedings.

    “The next step will be for the Itlos president to appoint the other three members of the arbitral tribunal upon the written request of the Philippines,” DFA spokesperson Assistant Secretary Raul Hernandez told a briefing on Monday.

    He reiterated that the arbitration would be a peaceful process to settle disputes in the contested waters.

    “We stress that arbitration is a peaceful and durable form of dispute settlement pursuant to international law,” said Hernandez.

    The Philippines went to the UN in January in hopes of halting Chinese incursions into the West Philippine Sea and nullifying China’s nine-dash line, which encroaches into established Philippine maritime boundaries.

    The DFA had contended that the nine-dash line was an “excessive claim in violation of international law, the Unclos.” Both countries ratified the international law but disagreed on interpreting its letter, particularly on the matter of maritime boundaries.

    The move specifically seeks to stop the Chinese occupation and construction on smaller islands in the West Philippine Sea that are claimed by the Philippines and hopes to compel the Chinese to respect the Philippines’ exclusive economic zone and continental shelf.

    The DFA had said it took the legal action after exhausting all other means to peacefully settle the dispute.

    But China rejected the Philippines’ move citing “indisputable sovereignty” over resource-rich territories in the West Philippine Sea and asserted that the issue should be resolved through direct negotiations between the two countries.

    While impartial on the merits of the case, several countries have expressed support for the Philippines’ decision to take a peaceful step toward resolving the dispute, among them, the United States and Germany. The United Nations also took the same position.

    Japan, which has its own territorial dispute with China over islands in the East China Sea, said the Philippines’ move was “understandable.”

    “I think it’s understandable, the solution that [the Philippines is] seeking… they are not using force and they are trying to find the peaceful solution under the rule of law. So in that sense we totally understand the Philippine action,” said Japanese Ambassador to the Philippines Toshinao Urabe in a recent interview.

    “We’re just waiting for what’s going to happen. So we totally understand the action, but we’re not taking sides,” he said.

    The envoy happens to know the Itlos president, a compatriot, and remarked that the judge would be fair in handling the arbitration case against China despite its dispute with Japan.

    “It doesn’t matter [that the Itlos president is Japanese]. It’s under the rule of law. And I know him. He’s a very impartial person, a very understanding person and I don’t think he will use his position to advance the national interest,” Urabe said.

    SOURCE: http://globalnation.inquirer.net/70257/itlos-names-judge-to-ph-arbitration-case-vs-china-over-spratlys-area

  2. Mel says

    March 14, 2013 at 8:10 PM

    China’s New Leaders

    • Mel says

      March 14, 2013 at 8:11 PM

      Videos to provide background information since the Philippines is formally bringing the dispute in the West Philippine Sea before an arbitral tribunal (United Nations) under Annex VII of UNCLOS.

  3. duquemarino says

    January 29, 2013 at 10:59 PM

    @CPMers

    Winning and losing territories.

    The United Nations has approved the Philippines’ claim to Benham Rise, “we own Benham Rise now”

    DID YOU KNOW THAT LAST YEAR, THE UNITED NATIONS APPROVED THE PHILIPPINES ‘ TERRITORIAL CLAIM TO BENHAM RISE WHICH IS POTENTIALLY RICH IN MINERAL AND NATURAL GAS DEPOSITS?

    We cannot and should not lose the West Philippine sea.

  4. LeoSanMig says

    January 26, 2013 at 3:56 PM

    Might does not make it right!

    http://online.wsj.com/article/SB10001424127887323539804578261140985134254.html?mod=googlenews_wsj

    • Joe America says

      January 26, 2013 at 7:13 PM

      Thank you for the link. Very interesting reading, and encouraging. It rebuts those who claim the filing with the UN is wasted energy. It shows that the Philippines has taken the lead to break down China’s divide and conquer strategy. More credit to President Aquino.

  5. baycas says

    January 25, 2013 at 7:47 AM

    @raissa,

    may tanong at sagot ang Palasyo. kung inyong mamarapatin, mangyari lang po sana na maisama rin dito.

    maraming salamat po.

    http://www.gov.ph/2013/01/24/dfa-tanong-at-sagot-ukol-sa-unclos-arbitral-tribunal-proceedings-laban-sa-tsina/

    • raissa says

      January 25, 2013 at 7:55 AM

      Thanks, Baycas.

  6. Martial Bonifacio says

    January 25, 2013 at 5:42 AM

    If UN checks the validity regarding chinas claim of senkaku island then it should also check the claim of the Philippines to kalayaan group of islands and scarborough shoal.

    http://www.gmanetwork.com/news/story/291910/news/world/un-to-look-into-validity-of-china-s-claim-over-islands-in-dispute-with-japan

    If china submits itself to tribunal against japan then it should do the same to Phillipines regarding the 9 dash “theory”.

    This will test the credibility of UN unless they allow double-standard in international laws. :)

  7. Mel says

    January 24, 2013 at 8:20 PM

    Maria Ressa interviews former US Ambassador to the Philippines John Negroponte.

    “Negroponte gives his thoughts on China, its territorial sovereignty disputes, the US treaty with the Philippines and how far it will go to protect its partner.”

    http://www.youtube.com/watch?v=jub3Faxy61s&feature=player_embedded

  8. baycas says

    January 24, 2013 at 3:43 PM

    Parang nasabi ko na before…

    Rally behind PNoy!

  9. macspeed says

    January 24, 2013 at 10:04 AM

    Bravo Prez Noy, whatever the outcome, it is a great act
    to let them know that what what China is claiming does not belong to them.
    Bulag ba sila, mismo mga righteous chinese people WILL DISAGREE if they will
    see that the Philippines is the NEAREST to these ROCKS, somehow
    not all of the chinese really support the communism of china, maybe the chinese
    freedom lover will use this sort of crumpled relations as an oppurtunity to
    re-continue what they wanted he he he he FREEDOM

    We need to be positive kahit walang yaman yun mga bato na yun he he he, if there are riches
    lalo dapat ipaglaban he he he tresspassing mga wakanga he he he

    wag lang daanin sa nuclear war, may panalo tayo he he he he lalo na sa cyber war ala silang panalo
    di naman natutulog mga henyo natin sa computer he he he Pinoy blood will always be on top kahit na
    sa Japan or down under pinanganak or lumaki, mga pinoy sa USofA or Europe he he he aatake rin yan he he he

  10. Thel says

    January 24, 2013 at 2:03 AM

    Hi Raisa, next paki blog naman about Gigi Reyes(Enrile’s ?)

« Older Comments
First they came for the Socialists, and I did not speak out— Because I was not a Socialist Then they came fof the Trade Unionists, and I did not out speak out— Because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out— Because I was not a Jew. Then they came for me— And there was no one left to speak for me. —Martin Niemöller (1892-1984)

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