VietNamNet Bridge – On July 7-13, the Philippines will argue its case against China’s claim over most of the disputed East Sea, internationally known as South China Sea, at the UN court in Hague, the Netherlands.

The hearing is extremely important because it is considered a typical case and an exemplary model for the defense of sovereignty in a peaceful and civilized way. Although China refused to participate in the hearing, the Philippines has prepared for the event for nearly three years.

Before the hearing, Filipino lawyer Dr. Jay L. Batongbacal talked with VietNamNet.

Dr. Jay L. Batongbacal.

The hearing is July 7 – 13, so could you update our readers on developments?

On July 7-13, the Philippines is scheduled to make oral arguments before the Tribunal with respect to the issues of jurisdiction and admissibility of claims.

These arguments will revolve around the issues raised by the Tribunal’s own questions based on the Memorial that the Philippines submitted last March 2014, and China’s position paper on the arbitration that was released last December 2014.

The July 7-13 hearing will not yet deal with the merits of the case, but focus on the issues of jurisdiction and admissibility as a preliminary matter.

After the hearing, the Tribunal will decide whether or not it has jurisdiction and/or the Philippines’ claims are admissible. If it decides that it does have jurisdiction and/or the claims are admissible, then the proceedings will continue to the merits of the case; if it not, then the case will be dismissed and the proceedings will end.   

What is the latest attitude of China and the international community about the hearing?

China continues to refuse to participate in the proceedings after submitting its December 7 position paper.

Last March 16, the Philippines gave its comments on the position paper, and China was given until June 15 to respond to those comments.

The deadline appears to have passed without China making such a response, and thus the July 7-13 oral arguments have already been set.

The rest of the international community continues to monitor the proceedings and await the results of the case.

Various countries have expressed continued support for the Philippines’ having resorted to the process as a peaceful means of dispute settlement.

What percentage can the Philippines win?

The Philippines has made numerous claims for relief in its pleading before the tribunal, but it is difficult to assess it as a matter of percentages since the claims are not of the same kind or character.

But I believe that of those claims, the most important ones, specifically the claim concerning the legality of China’s nine-dashed line, and the claim concerning the maritime zone entitlements of certain islands and rocks, have the best chance of being ruled upon favorably by the tribunal.  

What is the essential basis of the Philippines’ claims against China?

If you ask what is the principal basis of the Philippines’ claims against China, then it is basically arguing that the international community, China included, have already agreed upon a system of fair and equitable allocation of rights and jurisdictions to the sea (i.e., 12nm territorial sea, 24nm contiguous zone, 200nm EEZ, etc.), and these agreements are already enshrined in the 1982 UN Convention on the Law of the Sea.

The East Sea should be divided between the surrounding coastal States based on that system; however, China is not abiding by that international agreement and attempting to claim more than what is provided, by asserting that it is entitled to nearly the entire South China Sea as indicated by the nine dash line map.

China is rising strongly. It also holds a seat at the UN Security Council. Do you think that China will use those advantages to put pressure on the Tribunal?

There is no evidence that China has been pressuring the tribunal; in fact, it appears that China has been largely ignoring the tribunal by refusing to participate in the proceedings. The fact that it released a public position paper, however, indicates that it does still value or acknowledge the importance of the arbitration process to some extent, even though it does not hold itself bound by it.

If the tribunal were to eventually decide in favor of the Philippines, however, it could indeed use its power and influence to resist any calls for compliance with the tribunal’s decision, and it can even use its seat on the UN Security Council to veto any attempt to bring up the matter of enforcement before the Council.

How has the Philippines prepared for that situation?

As a smaller country and weaker power, the Philippines can only attempt to secure international support for its cause, and rely on such support in attempting to negotiate with China in the future.

In case the Tribunal is on the Philippines’ side, judging that China’s nine-dash line is invalid, do you think that the Philippines and its allies would take tough action to push China out of its economic exclusive zone?

No one is interested in armed conflict, and so I do not think that the Philippines and its allies would “take tough action” against China.

It is hoped that a favorable ruling will help strengthen the Philippines’ negotiating position with China, or at least provide some guidance on how the parties should act with respect to their competing claims to rights and entitlements to the waters of the East Sea, so that the deadlock in their respective positions can be surpassed.

How those future relations will be conducted do not necessarily require the active participation of the Philippines’ allies since those would be bilateral matters between the two States.

China has repeated: “The nine-dash line has been claimed by China for a long time and no country can oppose it.” However, when the Philippines responded and took China to the international court, they refused to attend. Why did China behave that way?

China refuses to participate because it believes that claims to the East Sea should be addressed by bilateral negotiations between it and the countries concerned, without the involvement of any third party.

China is fully aware that its nine-dash lines are of rather doubtful origin and legality, considering the history of that illustration and the lack of verifiable evidence of its “historic” basis.

No one attempted to actually explain the full meaning of the nine=dash line claim until the mid-1990s; prior to that it was understood at best to be a claim to the islands in the East Sea, but its implication on the surrounding waters was never clear, especially in the light of parallel development of UNCLOS maritime zones.

China is fully aware that under the current state of international law, its claim to “historic title” or “historic rights” to the vast expanse of the East Sea cannot be countenanced, which is why it is attempting to justify its claim on reasons other than those based on UNCLOS, by making a reference to customary international law.

“Customary international law” however requires consistent acceptance of a particular rule by the international community from the past and into the present; the fact that there have been disputes in the East Sea since the 1930s shows that neither its claims to sovereignty over the islands nor the nine-dash line have ever been actually accepted.  

In recent weeks, the Philippines had diplomatic actions and commitments with Japan. At the same time, Australia, Malaysia and Indonesia moved more closely with each other on the East Sea issue. The movement makes outsiders feel as if an 'alliance against China' is being formed. What is your personal opinion?

The Philippines’ actions should be seen as entirely logical and to be expected, since it is a far weaker power that is being subjected to pressure by China’s unilateral actions in the East Sea. It is natural to expect that the Philippines will react and do what it can to secure itself from those actions.

Likewise, other countries like the US, EU, etc. would not be making statements of concern unless they thought China gave them reason to do so; after all, the Philippines is the weaker of the two parties and there would be no reason for them to help the Philippines unless they thought it was justified.

The Philippines has asked the US to make a “stronger commitment” over the East Sea disputes. The Philippines has also ignored China’s warnings to send its aircraft and ships to the East Sea. I think that the Philippines is trying to do something to attract the world’s attention before the hearing. What do you think about it?

It is fair to say that the Philippines is trying to attract attention, but not before the tribunal, but rather to attract attention to what China is doing in the East Sea, which the Philippines believes is unfair and contrary to the rule of international law.

China’s establishment of a “military alert zone” is a serious matter, because that means that either China is claiming undefined areas (i.e., without notice and without boundaries) that used to be seas open to all States to suddenly be its land territory that everyone should keep out of, or that it is undertaking military operations that it prefers to keep unobserved or secret.

These are accompanied by China’s activities on the grounds which are directed against the Philippines, such as blocking ships, intimidating small fishing vessels, and taking resources close to the mainland. Taken together, these naturally create serious insecurity and anxiety on the part of the Philippines. Given that it is the weaker power, it is also natural to expect that it will try to seek help from other members of the international community by calling attention to China’s actions.

Hoang Huong