RAHIM, ALMA ABEDIN

JD-2B
SUBJECT: PUBLIC INTERNATIONAL LAW

TOPIC: An Arbitration Case between the Republic of the Philippines versus People’s
Republic of China

A position Paper on How the Philippines Can Use the Ruling to Protect its Interests

The issue was on 22 January 2013, the Philippines instituted arbitral proceedings
against China in a dispute concerning their respective “maritime entitlements” and the
legality of Chinese activities in the South China Sea. In response, by a diplomatic note dated
19 February 2013 addressed to the Philippines, China expressed its rejection of the
arbitration.

On 12 July 2016, the Arbitral Tribunal in the South China Sea Arbitration (The
Republic of the Philippines v. The People’s Republic of China) issued a unanimous award
largely favorable to the Republic of the Philippines. The People's Republic of China,
however, disregarded the judgment. The award addresses three main substantive issues:
(a) the so-called “nine-dash line” and China’s claim to historic rights in the South China Sea,
(b) the status of certain maritime features in the South China Sea and (c) the legality of
Chinese activities in the South China Sea. Because of jurisdictional limits, however, the
Arbitral Tribunal did not deal with matters related to territorial sovereignty over the
disputed maritime features between the parties. That means that the tribunal did not
decide who owned the maritime features located in the South China Sea, such as the Spratly
Islands, that are claimed by both China and the Philippines or any other coastal state in the
region. Similarly, the tribunal did not delimit any maritime boundaries between the
Philippines and China in the South China Sea.

The tribunal dealt with the question whether China’s claims to historic rights within
the “nine-dash line” were in conformity with UNCLOS. It first observed that this area – in
which China claimed rights, “formed in the long historical course”, to living and non-living
resources (i.e. fisheries and petroleum resources) – partially overlaps with areas that would
otherwise comprise the exclusive economic zone (EEZ) or the continental shelf (CS) of the
Philippines. In the view of the tribunal, UNCLOS establishes a comprehensive maritime
zones regime and allocates rights in these areas to the coastal state and other states: in the
areas of the EEZ and the CS, the coastal state enjoys exclusive sovereign rights to the
exploitation of living and non-living natural resources. Concerning the rights of other states
in these areas, the tribunal found that UNCLOS does not permit the preservation of historic
rights of any state within the EEZ or the CS of another state. Therefore, after the entry into
force of UNCLOS, the historic rights that might have existed for China within the “nine-dash
line” in areas that would otherwise include the EEZ or the CS of the Philippines were
superseded by the maritime zones regime created by UNCLOS. Accordingly, the tribunal
concluded that China’s claims were contrary to UNCLOS and exceeded the geographic limits
imposed by it.
RAHIM, ALMA ABEDIN
JD-2B
SUBJECT: PUBLIC INTERNATIONAL LAW

In the event that China disobeys the tribunal's ruling, the United Nation Convention of the
Laws of the Sea (UNCLOS) does not provide specific enforcement mechanism in place;
However, the Philippines may choose to use diplomatic means (bilateral or multilateral
negotiations within the framework of international organizations) or pursue additional
UNCLOS arbitration. The award has a value for the states bordering the South China Sea and
the rest of the international community for two reasons: (a) the tribunal’s ruling clarified the
respective rights and obligations of both China and the Philippines in the South China Sea,
thereby facilitating their further relations, and (b) the Tribunal’s findings might have an
impact on policy considerations and decision-making of other states as it clarified important
legal issues in UNCLOS.

The Republic of the Philippines can use this legal strategy to counter the People's
Republic of China's future acts. The Peoples Republic of China has been very expressive of its
solid stand to the ruling of the arbitration. Moreover, it has initially declined the
adjudication process in the arbitration proceeding from the very start and in parallel to that,
Cambodia supported China’s non-acceptance of the award. Furthermore, the ruling has
been a subject from critics of the international community of states. Nonetheless, it is
largely of whether a state that is subject to a judicial order or an arbitral award chooses to
comply upon the judgement of the tribunal. Since the tribunal cannot impose compliance on
the losing party. It can be noted from the cases being tried and decided by the arbitral
tribunal that 95% or more of states that has been a subject of international disputes being
tried and decided by the arbiter had complied with the award of the said tribunal due to the
fear of greater penalty to be imposed to those non-compliant states. The United Nations
Convention on the Law of the Sea (UNCLOS) is the international agreement of the law of the
sea in which both the Republic of the Philippines and the People’s Republic of China are
both members and signatories of this treaty. This award could also result in a peaceful
settlement between the claimant states in the South China Sea. Additionally, many states
are in favor of the arbitration's decision in favor of the Republic of the Philippines. This could
be an initial alliance to be formed among the participating states in the treaty and build
understanding among nations in a global context such as the other countries, including the
United States, Vietnam, Australia and Japan, who backed the Philippines and called on China
to respect the tribunal’s decision. It can also be inferred from the award of the tribunal that
although there is no strict enforcement of the judgment of the international order, majority
of the cases; the states still comply. It is the judgement of the international court order or a
judgment of an arbitral tribunal that is seen and being recognized in the international
community as legitimate, valid, fair and appropriate which must be respected and complied
with by the states, in the event that any of the participating states outlaw or violates such
award from the tribunal. The state that outlaw or defies such order pays a great price of
disrespect from the international court of order.
RAHIM, ALMA ABEDIN
JD-2B
SUBJECT: PUBLIC INTERNATIONAL LAW

PCA Case No. 2013-19 – The South China Sea Arbitration Award of 12 July 2016

Legal Victory for the Philippines against China: A Case Study by Christine Pichel Medina

A Discussion on the Philippines’ South China Sea Arbitration- Mr. Paul S. Reichler