PH ordered to file written comment on case vs China

MANILA, Philippines – The tribunal handling the Philippines’ historic arbitration case on the South China Sea ordered Manila to submit written comments to support its claims against China.

The Hague-based tribunal gave the Philippines until March 15, 2015, to file a “supplemental written submission.” China in turn has until June 16, 2015, to respond to the written comments.

“The Arbitral Tribunal issued with its Procedural Order No. 3 a ‘Request for Further Written Argument by the Philippines Pursuant to Article 25(2) of the Rules of Procedure’ addressing specific issues relating to both the jurisdiction of the Arbitral Tribunal and to the merits of the Parties’ dispute,” said the Permanent Court of Arbitration (PCA) in a press release on Wednesday, December 17.

“The Philippines has been invited to address, as it considers appropriate, any public statements made by the Chinese government in relation to the dispute,” the PCA added.

The court was referring to China’s position paper detailing its objection to arbitration. Beijing published the paper a week before the December 15 deadline the tribunal set for it to respond to the 4,000-page pleading that the Philippines filed last March.

The court said that, as of December 16, China did not file a “counter-memorial” but reiterated in public that it continues to reject arbitration.

The PCA said, however, that the Chinese government forwarded its position paper to the tribunal, and its 5 members received copies. Yet it noted that China made it “clear that the forwarding of the position paper shall not be regarded as China’s acceptance of or its participation in the arbitration.”

In the paper, China argued that the tribunal has no jurisdiction or power to decide the case. Beijing said that the case involves territorial sovereignty, beyond the scope of the UN Convention on the Law of the Sea (UNCLOS).

China also said that the Philippines’ claims touched on maritime delimitation, an exception it specified when it ratified the treaty in 2006.

The Philippines will have the chance to respond to China’s arguments on jurisdiction through the written comment.

The PCA cited UNCLOS in explaining that the case will proceed despite China’s refusal to file its own pleading.

It quoted Article 9 of Annex VII of UNCLOS as the basis for requesting written arguments from the Philippines and China. 

“The Arbitral Tribunal may take whatever other steps it may consider necessary, within the scope of its powers under the Convention, its Annex VII, and these Rules, to afford to each of the Parties a full opportunity to present its case,” UNCLOS stated.

Also a party to UNCLOS, the Philippines brought China to arbitration as a “last resort” in the long-running dispute. The case was a response to Beijing’s growing aggression, and was meant to use international law to invalidate China’s controversial 9-dash line. (READ: Rough seas: Will PH ‘lawfare’ work vs China?)

Vietnam, Brunei, Malaysia, and Taiwan also claim parts of the South China Sea. Beijing says it has “indisputable sovereignty” over practically the entire sea, where half of the world’s cargo passes through and rich deposits of oil and gas supposedly lie.

PH, China consulted on Vietnam statement

The PCA said that the tribunal is asking the Philippines and China to respond to the submission of Vietnam, which announced last week that it filed its own comment.

“The Arbitral Tribunal is presently consulting with the Parties on a ‘Statement of the Ministry of Foreign Affairs of Viet Nam for the attention of the Tribunal in the Proceedings between the Republic of the Philippines and the People’s Republic of China,’ received by the Registry for the attention of the Arbitral Tribunal on 5 December 2014,” the PCA said.

The tribunal will determine other steps in the proceedings, including the need to schedule more written comments and hearings, after consulting the Philippines and China.

Under President Benigno Aquino III, the Philippines brought China to arbitration in January 2013. It is expecting a decision by early 2016.

The case is the first time an international body will weigh in on the legal basis of China’s expansive sea claims, particularly its 9-dash line. On December 5, the US released a study questioning the legality of the line, a paper the Philippines said supported its own position.

The arbitral tribunal is composed of the world’s premier experts on the law of the sea, with Judge Thomas Mensah of Ghana as chair. The other members are Judge Jean-Pierre Cot of France, Judge Stanislaw Pawlak of Poland, Professor Alfred Soons of the Netherlands, and Judge Rüdiger Wolfrum of Germany. 

The PCA acts as the registry in the proceedings. – Rappler.com