Foreign Secretary Albert F. del Rosario on Tuesday made an impassioned plea before an arbitral tribunal in The Hague to recognize the country’s West Philippine Sea (South China Sea) jurisdiction, “because of the importance of the case, not only to the region but to the entire world, and its impact on the application of the rule of law in maritime disputes.”
“We are here because we wish to clarify our maritime entitlements in the South China Sea, a question over which the Tribunal has jurisdiction.
“This is a matter that is most important not only to the Philippines, but also to all coastal states that border the South China Sea, and even to all the states parties to the Unclos [United Nations Convention on the Law of the Sea]. It is a dispute that goes to the very heart of the Unclos itself. Our very able counsel will have much more to say about this legal dispute over the interpretation of the convention during the course of these oral hearings,” del Rosario said.
The Philippines, he said, has five principal claims to the West Philippine Sea:
First, that China is not entitled to exercise what it refers to as “historic rights” over the waters, seabed and subsoil beyond the limits of its entitlements under the Convention;
Second, that the so-called nine-dash line has no basis whatsoever under international law insofar as it purports to define the limits of China’s claim to historic rights;
Third, that the various maritime features relied upon by China as a basis upon which to assert its claims in the South China Sea are not islands that generate entitlement to an exclusive economic zone (EEZ) or continental shelf.
“Rather, some are ‘rocks‘ within the meaning of Article 121, Paragraph 3; others are low-tide elevations; and still others are permanently submerged.”
Fourth, that China has breached the Convention by interfering with the Philippines’s exercise of its sovereign rights and jurisdiction; and
Fifth, that China has irreversibly damaged the regional marine environment, in breach of the Unclos, by its destruction of coral reefs in the South China Sea, including areas within the Philippines’s EEZ, by its destructive and hazardous fishing practices, and by its harvesting of endangered species.
“The Philippines has long placed its faith in the rules and institutions that the international community has created to regulate relations among states. We are proud to have been a founding member of the United Nations, and an active participant in that indispensable institution.”
Del Rosario added that the UN’s “organs, coupled with the power of international law, serve as the great equalizer among states, allowing countries, such as my own, to stand on an equal footing with wealthier, more powerful states.”
“It is these dispute-resolution provisions that allow the weak to challenge the powerful on an equal footing, confident in the conviction that principles trump power; that law triumphs over force; and that right prevails over might.”
The country’s foremost diplomat said the Unclos has rightly been called the “Constitution for the Oceans,” which counts among its most important achievements the establishment of clear rules regarding the peaceful use of the seas, freedom of navigation, protection of the maritime environment “and, perhaps, most important, clearly defined limits on the maritime areas in which states are entitled to exercise sovereign rights and jurisdiction.”
“The Philippines has respected and implemented its rights and obligations under the convention in good faith,” del Rosario said. “This can be seen in the amendment of our national legislation to bring the Philippines’s maritime claims into compliance with the Convention, by converting our prior straight baselines into archipelagic baselines.”
He said the Philippines took these important steps to seeking the Tribunal’s intervention, “because we understand, and accept, that compliance with the rules of the convention is required of all states parties.”
China is a signatory to the Unclos.
Del Rosario said that, for the Philippines, the maritime entitlements of coastal states—to a territorial sea, EEZ and continental shelf, and the rights and obligations of the states parties within these respective zones—are established, defined and limited by the express terms of the convention.
China claims 80 percent of the entire South China Sea based on historic rights, defined by its nine-dash line.
The Philippines wanted the Unclos to limit China’s claims, saying that they are excessive and unlawful.
“Sadly, China disputes this, Mr. President, in both word and deed. It claims that it is entitled to exercise sovereign rights and jurisdiction, including the exclusive right to the resources of the sea and seabed, far beyond the limits established by the convention, based on so-called historic rights to these areas.”
Del Rosario said the central element of the legal dispute between the parties is that China has asserted a claim of historic rights to vast areas of the sea and seabed that lie far beyond the limits of its EEZ and continental shelf.
“In fact, China has done much more, Mr. President, than to simply claim these alleged historic rights. It has acted forcefully to assert them, by exploiting the living and nonliving resources in the areas beyond the Unclos limits, while forcibly preventing other coastal states, including the Philippines, from exploiting the resources in the same areas—even though the areas lie well within 200 miles of the Philippines’s coast and, in many cases, hundreds of miles beyond any EEZ or continental shelf that China could plausibly claim under the convention.”
Del Rosario then made the appeal to show that the Unclos has jurisdiction over the issue.
For the second day of the oral arguments, Philippine lawyers explained how the country’s case did not fall under the specific Unclos exemptions, which would preclude the Tribunal from hearing the case.
The Philippine legal team is expected to summarize the country’s case and reply to questions to be raised by the Tribunal before the oral arguments conclude on July 13.
The high-powered Philippine team for the Unclos arbitration case is currently being heard by an arbitral tribunal in The Hague after it has begun presenting the arguments for the Philippine position, with emphasis on the Tribunal’s proper jurisdiction to hear and decide the case.
The first to speak for the Philippines on the first day of the oral arguments was Solicitor General Florin Hilbay, who introduced the case and presented the order of speakers for the Philippines.
Following del Rosario was the chief counsel for the Philippines, Paul Reichler of the US-based Foley Hoag law firm, who presented the justification for the Tribunal’s jurisdiction over the Philippine claims under the Unclos. He was followed by other foreign legal experts, who explained how the Philippine claims did not raise questions of sovereignty over land or raise questions of maritime delimitation.
Issues of sovereignty and maritime delimitation are beyond the scope of the Tribunal’s jurisdiction to hear the current case, but do not form part of the Philippine claims. China refused to take part in the proceedings.
Last Monday Ambassador Zhao Jianhua invited the Philippines to return to bilateral talks “without precondition.”
“I think the best is to sit down bilaterally to talk. Our door for bilateral consultation and negotiation is still open and will be open forever,” he said.
However, DFA Spokesman Charles Jose said the country had tried several times before to sit down with China. But the talks failed to proceed because right at the start of every talks, China would say that it has “indisputable sovereignty over the contested area.”