Permanent court of Arbitration website: the Arbitral Tribunal in Philippines v China, (l-r)  Judge Jean Pierre-Cot, Judge Stanislaw Pavlak, Judge Thomas A. Mensah (President), Judge Rudger Wolfrum, Professor Alfred H. A. Soons   Permanent court of Arbitration website: the Arbitral Tribunal in Philippines v China, (l-r) Judge Jean Pierre-Cot, Judge Stanislaw Pavlak, Judge Thomas A. Mensah (President), Judge Rudger Wolfrum, Professor Alfred H. A. Soons

The Tribunal Renders Award on Jurisdiction and Admissibility; Will Hold Farther Hearings Featured

The Tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea (the “Convention”) in the arbitration instituted by the Republic of the Philippines against the People’s Republic of China has issued its Award on Jurisdiction and Admissibility. This arbitration concerns the role of “historic rights” and the source of maritime entitlernents in the South China Sea, the status of certain maritime features in the South China Sea and the maritime entitlements they are capable of generating. and the lawfulness of certain actions by China in the South China Sea that are alleged by the Philippines to violate the Convention.

In light of limitations on the matters that can be submitted to compulsory dispute settlement under the Convention, the Philippines has emphasized that it is not requesting the Tribunal to decide the question of sovereignty over maritime features in the South China Sea that are claimed by both the Philippines and China. Nor has the Philippines requested the Tribunal to delimit any maritime boundary between the two States. China has repeatedly stated that “it will neither accept nor participate in the arbitration unilaterally initiated by the Philippines.” China has, however, made clear its view-in particular through the publication in December 2014 of a “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines” (“China’s Position Paper”)--that the Tribunal lacks jurisdiction to consider the Philippines’ Submissions.

  Under the Convention, an arbitral tribunal must satisfy itself that it has jurisdiction to decide a matter presented to it, even if a party chooses not to participate in the proceedings or to make a formal objection. Accordingly, the Tribunal decided in April 2015 that it would treat China’s Position Paper as effectively constituting a plea concerning the Tribunal’s jurisdiction and convened a Hearing on Jurisdiction and Admissibility that took place in The Hague on 7, 8 and 13 July 2015.

  The Tribunal’s Award of today’s date is unanimous and concems only whether the Tribunal has jurisdiction to consider thePhilippines’ claims and whethersuchclaimsareadmissible. The Award does not decide any aspect of the merits of the Parties’ dispute. In its Award, the Tribunal has held that both the Philippines and China are parties to the Convention and bound by its provisions on the settlement of   disputes. The Tribunal

 has also held that China’s decision not to participate in these proceedings does not deprive the Tribunal of jurisdiction and that the Philippines’ decision to commence arbitration unilaterally was not an abuse of the Convention’s dispute settlement procedures. Reviewing the claims submitted by the Philippines. the Tribunal has rejected the argument set out in China’s Position Paper that the Parties’ dispute is actually about sovereignty over the islands in the South China Sea and therefore beyond the Tribunal’s jurisdiction. The Tribunal has also rejected the argument set out in China’s Position Paper that the Parties’ dispute is actually about the delimitation of a maritime boundary between them and therefore excluded from the Tnounal’s jurisdiction through a declaration made by China in 2006. On the contrary, the Tribunal has held that each of

the Philippines’ Submissions reflect disputes between the two States concerning the interpretation or application of the Convention. The Tribunal has also held that no other States are indispensable to the proceedings.

Turning to the preconditions to the exercise of the Tribunal’s jurisdiction set out in the Convention, the Tribunal has rejected the argument in China’s Position Paper that the 2002 China-ASEAN Declaration on the Conduct of Parties in the South China Sea constitutes an agreement to resolve disputes relating to the South China Sea exclusively through negotiation. On the contrary, the Tribunal has held that the China-- ASEAN Declaration was a political agreement that was not intended to be legally binding and was therefore not relevant to the provisions in the Convention that give priority to the resolution of disputes through any means agreed between the Parties. The Tribunal has likewise held that certain other agreements and joint statements by China and the Philippines do not preclude the Philippines from seeking to resolve its dispute with China through the Convention. Further, the Tribunal has held that the Philippines has met the Convention’s requirement that the Parties exchange views regarding the settlement of their dispute and has sought to negotiate with China to the extent required by the Convention and general internalionallaw.

The Tribunal then considered the limitations and exceptions set out in the Convention that preclude disputes relating to certain subjects from being submitted to compulsory settlement The Tribunal observed that whether these limitations and exceptions would apply to the Philippines’ claims was, in some cases, linked to the merits of the claims. For instance, whether the Tribunal would have jurisdiction to address China’s claims to historic rights in the South China Sea may depend upon the Tribunal’s assessment of the nature of China’sclaimedrights. Similarly,whethertheTribunalwouldhavejurisdictiontoaddressChineseactivities in the South China Sea may depend upon the TnDunal’s decision on whether any of the maritime features claimed by China are islands capable ofgenerating maritime zones overlapping those ofthe Philippines. The Tribunal also noted that the location of certain activities and the Convention’s exception for military activities may affect its jurisdiction over certain o f the Philippines’ claims

In light of the foregoing, the Tribunal has concluded that it is presently able to decide thai it does have jurisdiction with respect to the matters raised in seven of the Philippines’ Submissions. The Tribunal has concluded, however, that its jurisdiction with respect to seven other Submissions by the Philippines will need to be considered in conjunction with the merits. The Tribunal bas requested the Philippines to clarify and

narrow one ofits Submissions.

The Tribunal will convene a further hearing on the merits ofthe Philippines’ claims. In consultation with the Parties, the Tribunal has provisionally set the dates for the merits hearing. As with the Hearing on Jurisdiction and Admissibility, the hearing on the merits will not be open to the public, however the Tribunal will consider requests from interested States to send small delegations ofobservers. The Permanent Court of Arbitration (the “PCA”), which acts as Registry in the case, will issue further Press Releases upon the commencementandclosingofthemeritshearing. TheTribunalexpectsthatitwillrenderitsAwardonthe merits and remaining jurisdictional issues in 2016.

 
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