PH finds China case ‘doubly difficult’

Paterno Esmaquel II
The Philippines is forced to present China's arguments to the arbitral tribunal in the historic case over the South China Sea

LOVE OF COUNTRY. A twist camera effect picture shows a Filipino protester waving a Philippine flag during a demonstration outside the Chinese embassy office in Makati on July 24, 2013. File photo by Dennis Sabangan/EPA

MANILA, Philippines – China’s refusal to join the arbitral proceedings over the West Philippine Sea (South China Sea) places a heavy burden on the shoulder of the Philippines, the country’s government lawyer admitted.

Now the Philippines is forced to present China’s arguments before the arbitral tribunal, Solicitor General Francis Jardeleza said in a forum Thursday, February 27.

“In fact it makes the work of the lawyers doubly difficult, because we have to kind of anticipate what the arguments will be, and knock them down,” Jardeleza said.

In any case, he said he is confident the arbitral tribunal will render a just judgment. The tribunal’s 5 members, after all, “each on their own are very widely respected members of the international legal community.”

The 5-member tribunal is led by Thomas Mensah, the first president of the International Tribunal for the Law of the Sea (ITLOS).

It is also composed of the following:

  • Judge Rüdiger Wolfrum (Germany), member, current ITLOS judge

  • Judge Stanislaw Pawlak (Poland), member, current ITLOS judge

  • Judge Jean-Pierre Cot (France), member, current ITLOS judge

  • Judge Alfred Soons (The Netherlands), member

‘Biggest challenge’

VETERAN JUDGE. Thomas Mensah of Ghana (first from left) presides over the tribunal to hear the Philippines' case against China. File photo from the International Foundation for the Law of the Sea

Of the judges, Jardeleza said, “They know that everybody is watching, and the fact that China has not participated is producing challenges for the judges and also for the Philippines.”

For instance, he said, the judges have likely heard of a recent book “sympathetic” to China, and the Philippines “now will have to make a decision how to cover it in our memorial.”

The Philippines’ memorial, or written pleading, is due on March 30. China is bent on stopping the Philippines from submitting this, sources told Rappler.

“Ordinarily, China should set up all of these arguments. But if, you know, they seemingly want to fight this legal battle by proxies, then there is a big challenge. But at the end of the day, the Philippines is very optimistic about the rigorous discipline of these judges,” Jardeleza said.

“Remember,” he added, “these 5 people are faced with probably the biggest challenge of their lives.”

“You don’t likely make a decision that affects one of the most powerful countries in the world. And so they have to be very, very careful about validating our claims. But as I said, we are highly confident that our claims are just,” the lawyer explained.

In an e-mail to Rappler, Paul Reichler, the country’s lawyer in its case against China, also said the Philippine legal team believes that the country has a strong case, “both on jurisdiction and on the merits.” (READ: PH lawyer on China: Being ‘int’l outlaw’ has its price)

At stake: Right to fish 

TOPNOTCH LAWYER. The Philippines' lead counsel against China, Paul Reichler, has defended sovereign states for over 25 years. File photo from ITLOS

In a forum in December 2013, Reichler said the Philippines arms itself with the following claims before the arbitral tribunal:

  • “first and foremost,” a declaration against China’s controversial 9-dash line

  • a determination that Scarborough Shoal is not an island but a group of rocks

  • and a similar determination that classifies disputed portions of the Spratly Islands as rocks

“Fundamentally, what the Philippines seeks is a declaration that all of the rights and entitlements in the South China Sea, including the rights to the resources, living and non-living, are governed by the UN Convention on the Law of the Sea (UNCLOS). And under that convention, the 9-dash line is inconsistent and unlawful,” Reichler explained.

China uses the 9-dash line, a demarcation mark, to claim virtually the whole South China Sea.

The 9-dash line overlaps with the Philippines’ 200-mile exclusive economic zone (EEZ). Under the UNCLOS, the Philippines has the sovereign rights to explore and exploit, and conserve and manage natural resources, among others, within its EEZ.

A favorable ruling will entitle the Philippines “to the full enjoyment” of its EEZ, Reichler said.

The right to fish is at the core of the standoff between the Philippines and China in the disputed Panatag (Scarborough) Shoal.

The dispute over Panatag heated up on Tuesday, February 25, after the Philippines’ Department of Foreign Affairs “strongly” protested the so-called water cannon incident there. (READ: ‘Even during storms, China harassed Filipinos’)

Jardeleza said the Philippines is considering to include this incident in its memorial. He also said the Philippines wants Malaysia and Vietnam to join its case against China. – Rappler.com

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Paterno Esmaquel II

Paterno R. Esmaquel II, news editor of Rappler, specializes in covering religion and foreign affairs. He obtained his MA Journalism degree from Ateneo and later finished MSc Asian Studies (Religions in Plural Societies) at RSIS, Singapore. For story ideas or feedback, email him at pat.esmaquel@rappler.com.