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OVERVIEW

The South China Sea is the subject of dispute between the Philippines and the China. The

Philippines tried to ask for negotiation with China to settle such dispute. However, China

consistently ignored such. The Philippines then initiated an arbitration proceeding pursuant to the

provision of the United Nations Conventions on the Law on the Sea. China, still, consistently

showed its objection or refusal to settle the dispute through non participation on the arbitration

proceedings. The Permanent Court of Arbitration then rendered an arbitral award in favor of the

Philippines and that China has no basis on its claim over the said disputed territory. China

questioned the validity and legality of the award invoking the lack of jurisdiction of the said

tribunal. According to China, there is no award to be enforced since the award itself is null and

void. China presented its positions supporting its claim. However, the Philippines move for the

award on jurisdiction and admissibility.

As a conclusion, the arbitral award shall be enforceable. The Arbitral Tribunal has

jurisdiction to decide on the matter. The award, therefore, is final and binding as between the

parties. China, being a signatory to UNCLOS has no reason to refuse the recognition and

enforcement of the award as against it.

INTRODUCTION

The Philippines officially known as the Republic of the Philippines is

a unitary sovereign and archipelagic country in Southeast Asia. It consists of about 7,641 islands

that are categorized broadly under three main geographical divisions from north to

south: Luzon, Visayas, and Mindanao.1 Bounded by the South China Sea on the west,

the Philippine Sea on the east and the Celebes Sea on the southwest, the Philippines shares

maritime borders with Taiwan to the north, Vietnam to the west, Palau to the east and

Malaysia and Indonesia to the south.

With regard to the said boundaries, territorial disputes arise between and among

neighboring countries. One of such territorial disputes includes that of Philippines and China.

China claims “historic rights” and sovereignty and sovereign rights over the islands and other

maritime features on the South China Sea.

The South China Sea is a semi-enclosed sea in the western Pacific Ocean, spanning an

area of almost 3.5 million square kilometers. The South China Sea lies to the south of China; to

1 "More islands, more fun in PH". CNN Philippines. February 20, 2016. RetrievedFebruary 20, 2016.
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the west of the Philippines; to the east of Viet Nam; and to the north of Malaysia, Brunei,

Singapore, and Indonesia. The South China Sea is a crucial shipping lane, a rich fishing ground,

home to a highly biodiversity coral reef ecosystem, and believed to hold substantial oil and gas

resources. The southern portion of the South China Sea is also the location of the Spratly Islands,

a constellation of small islands and coral reefs, existing just above or below water, that comprise

the peaks of undersea mountains rising from the deep ocean floor. 2

On January 2013, an arbitration proceeding was formally initiated. The Parties to this

arbitration are the Republic of the Philippines (the “Philippines”) and the People’s Republic of

China (“China”).

This arbitration concerns disputes between the said parties regarding the legal basis of

maritime rights and entitlements in the South China Sea, the status of certain geographic features

in the South China Sea, and the lawfulness of certain actions taken by China in the South China

Sea. 3

The basis for this arbitration is the 1982 United Nations Convention on the Law of the

Sea(the “Convention” or “UNCLOS”). 1 Both the Philippines and China are parties to the

Convention, the Philippines having ratified it on 8 May 1984, and China on 7 June 1996. The

Convention was adopted as a “constitution for the oceans,” in order to “settle all issues relating

to the law of the sea,” and has been ratified by 168 parties. The Convention addresses a wide

range of issues and includes as an integral part a system for the peaceful settlement of disputes.

This system is set out in Part XV of the Convention, which provides for a variety of dispute

settlement procedures, including compulsory arbitration in accordance with a procedure

contained in Annex VII to the Convention. 3

However, China has consistently rejected the Philippines’ recourse to arbitration and

adhered to a position of neither accepting nor participating in these proceedings. It has

articulated this position in public statements and in many diplomatic Notes Verbales, both to the

Philippines and to the Permanent Court of Arbitration (the “PCA” or the “Registry”), which

serves as the Registry in this arbitration. China’s Foreign Ministry has also highlighted in its

statements, press briefings, and interviews that it considers non-participation in the arbitration to

be its lawful right under the Convention.

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Despite its decision not to appear formally at any point in these proceedings, China has

taken steps to informally make clear its view that the Tribunal lacks jurisdiction to consider any

of the Philippines’ claims. On 7 December 2014, China’s Foreign Ministry published 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”).3

The Tribunal decided to treat the Position Paper and communications from China as

equivalent to an objection to jurisdiction and to conduct a separate hearing and rule on its

jurisdiction as a preliminary question. The Tribunal issued its Award on Jurisdiction and

Admissibility (the “Award on Jurisdiction”) on 29 October 2015, addressing the objections to

jurisdiction set out in China’s Position Paper, as well as other questions concerning the scope of

the Tribunal’s jurisdiction.

On 12 July 2016, the Permanent Court of Arbitration published an arbitration award by

the tribunal which it states is final and binding as set out in the Convention.4 However, On the

same date, China stated that it will not accept the ruling.5 According to the Chinese Ministry of

Foreign Affairs, it states "With regard to the award rendered on such date by the Arbitral

Tribunal in the South China Sea arbitration established at the unilateral request of the Republic

of the Philippines (hereinafter referred to as the "Arbitral Tribunal"), the Ministry of Foreign

Affairs of the People's Republic of China solemnly declares that the award is null and void and

has no binding force. China neither accepts nor recognizes it."5 Xi Jinping, president of China

stated that China's "territorial sovereignty and marine rights" in the seas would not be affected by

the ruling.5 As well, he stated that China was still committed to resolving the dispute with its

neighbours.5

STATEMENT OF THE PROBLEM

With the continuing rejection to honor or abide with the arbitral award over the area

enclosed by the nine-dash line, it is relevant to resolve “Whether or not the arbitral award

rendered in favor of the Philippines is enforceable against China”. Various considerations would

be presented which are considered vital in the resolution of the problem.

4https://en.wikipedia.org/wiki/Philippines_v._China
5Socialist Republic of Viet Nam, Statement of the Ministry of Foreign Affairs of the Socialist Republic of
Viet Nam Transmitted to the Arbitral Tribunal in the Proceedings Between the Republic of the
Philippines and the People’s Republic of China, pp. 1-3, 5-6 (14 December 2014) (Annex 468)
(hereinafter “Viet Nam’s Statement”). As noted in the Award on Jurisdiction, the Tribunal had granted Viet
Nam access to copies of the Memorial, after seeking the views of the Parties, on 24 April 2014.
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OBJECTIVE OF THE STUDY

As such statements made by the China, the arbitral award becomes a piece of scrap paper.

Hence, this paper will lay down valuable arguments in favor of or against the enforceability of

the arbitral award rendered by the Philippine Court of Arbitration. The thorough study on the

matter will give a clearer picture on the validity of an international arbitral award rendered by an

international court.

ARGUMENTS

China has made it clear on multiple occasions that because the Arbitral Tribunal clearly

has no jurisdiction over the present Arbitration, the decision to be made by such an institution

that lacks the jurisdiction to do so has obviously no legal effect, and consequently there is

no such thing as the recognition or implementation of the Award.3

The purpose of the arbitral tribunal is to settle international disputes by peaceful means

which is pursuant to the fundamental principles of international law. However, it should be

considered that there are a variety of means to settle disputes peacefully. Apparently, compulsory

arbitration is merely a new type of procedure established under the UNCLOS.

Compulsory arbitration is subsidiary and complementary to negotiation and

consultation.3Its application is subject to several preconditions. First, compulsory arbitration can

only be applied to settle disputes concerning the interpretation and application of the UNCLOS.

If the subject matters are beyond the scope of the UNCLOS, the disputes shall not be settled by

compulsory arbitration. The issue of territorial sovereignty is one such case. Consequently,

States shall not initiate compulsory arbitration on disputes concerning it; and even if they do, the

arbitral tribunal has no jurisdiction over them. Second, a State Party to the UNCLOS may

declare in writing that it does not accept compulsory arbitration with respect to disputes

concerning maritime delimitation, historic bays or titles, military and law enforcement activities,

etc. Such exclusions are effective to other States Parties. With respect to disputes excluded by

one party, other parties to the dispute shall not initiate compulsory arbitration; and even if it

does, the arbitral tribunal has no jurisdiction over them. Third, if parties to a dispute have agreed

on other means of settlement of their own choice, no party shall unilaterally initiate compulsory

arbitration; and even if it does, the arbitral tribunal has no jurisdiction over the dispute.

Fourth, at the procedural level, parties to a dispute are obliged to first exchange views on the
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means of dispute settlement. Failing to fulfill this obligation, they shall not initiate

compulsory arbitration; and even if they do, the arbitral tribunal has no jurisdiction over the

dispute.

The above-stated four preconditions constitute a bar for parties to initiate compulsory

arbitration, and for the arbitral tribunal to establish its jurisdiction. Such preconditions form part

of the wrap up system of dispute settlement, which shall be interpreted and applied

comprehensively and in its entirety. In giving due consideration to the above preconditions to the

arbitration unilaterally initiated by the Philippines, it is manifestly that the Philippines, by

initiating the arbitration, has violated international law in such four aspects.

First, according to China, the core of the subject-matter of the arbitration is territorial

sovereignty over several maritime features in the South China Sea. Territorial sovereignty as

mentioned is beyond the scope of the UNCLOS. Second, even though some of the claims were

concerned with the interpretation and application of the UNCLOS, they would still be an integral

part of maritime delimitation, which has been excluded by China through its 2006 Declaration

and consequently is not subject to compulsory arbitration. Third, China and the Philippines have

agreed to settle their disputes in the South China Sea through negotiation, hence,the Philippines

is precluded from initiating arbitration unilaterally. Fourth, there is no exchange of views as to

the means of dispute settlement between Philippines and China,hence,compulsory arbitration is

not proper.

Summing up the said arguments made by China, the Philippines’ initiation of the

arbitration is a typical abuse of compulsory arbitral procedures stipulated in the UNCLOS.

However, there are also considerations in which it can be inferred that the Arbitral

tribunal has jurisdiction thus, the award is enforceable.

First, the convention expressly acknowledges the possibility of non-participation by one

of the parties to a dispute and confirms that such non-participation does not constitute a bar to

the proceedings pursuant to Article 9, Annex VII of the Convention. It states that ‘If one of the

parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the

other party may request the tribunal to continue the proceedings and to make its award. Absence

of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.

Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction
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over the dispute but also that the claim is well founded in fact and law.” This provision seeks to

balance the risks of prejudice that could be suffered by either party in a situation of non-

participation. It protects the participating party by ensuring that proceedings will not be

frustrated by the decision of the other party not to participate. It also protects the rights of the

non-participating party by ensuring that a tribunal will not simply accept the evidence and claims

of the participating party by default.6 The Tribunal has taken a number of measures to safeguard

the procedural rights of China such as prompt delivery of all the communications relative to the

arbitration to China.

With respect to the first precondition, the Tribunal noted that there is a dispute between

the parties regarding sovereignty over islands, but held that the matters submitted to arbitration

by the Philippines do not concern sovereignty. The Tribunal also emphasized that “[t]he

Philippines has not asked the Tribunal to rule on sovereignty and, indeed, has expressly and

repeatedly requested that the Tribunal refrain from so doing.” The Tribunal emphasized that it

did “not see that any of the Philippines’ Submissions require an implicit determination of

sovereignty.”

As to the second precondition, the Tribunal noted that a dispute concerning whether a

State possesses an entitlement to a maritime zone is a distinct matter from the delimitation of

maritime zones in an area in which they overlap. While a wide variety of issues are

commonly considered in the course of delimiting a maritime boundary, it does not follow that a

dispute over each of these issues is necessarily a dispute over boundary delimitation. The

Tribunal held that the claims presented by the Philippines do not concern sea boundary

delimitation and are not, therefore, subject to the exception to the dispute settlement

provisions of the Convention. The Tribunal also emphasized that the Philippines had not

asked it to delimit any boundary.

As to the third precondition, Articles 281 and 282 of the Convention may prevent a State

from making use of the mechanisms under the Convention if they have already agreed to another

means of dispute resolution. The Tribunal then considered the applicability of Articles 281 and
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282 to the following instruments to determine whether the Parties had agreed to another means

of dispute settlement: (a) the2002 China–ASEAN Declaration on the Conduct of Parties in the

South China Sea (the“DOC”), (b) a series of joint statements issued by the Philippines and China

referring to the resolution of disputes through negotiations, (c) the Treaty of Amity and

Cooperation in Southeast Asia, and (d) the Convention on Biological Diversity (the “CBD”). The

Tribunal held that the DOC is a political agreement and “was not intended to be a legally binding

agreement with respect to dispute resolution,”6 does not provide a mechanism for

bindingsettlement,7 and does not exclude other means of settlement.8 9 Withrespect to the Treaty

of Amity and Cooperation in Southeast Asia and the CBD, the Tribunal noted that both are

legally binding agreements with their own procedures for disputes, but that neither provides a

binding mechanism and neither excludes other procedures.10 Accordingly, the Tribunal

concluded that none of these instruments prevent the Philippines from bringing its claims to

arbitration.

With respect to the fourth precondition which is exchange of views on the settlement of

the dispute, the Tribunal held that Article 283 requires parties to exchange views on the means of

settling their dispute, not the substance of that dispute.11 The Tribunal held that this requirement

was met in the record of diplomatic communications between the Philippines and China, in

which the Philippines expressed a clear preference for multilateral negotiations involving the

other States surrounding the South China Sea while China insisted that only bilateral talks could

be considered.12 The Tribunal also considered whether, independently of Article 283, the

Philippines was under an obligation to pursue negotiations before resorting to arbitration.13 In

this respect, the Tribunal held that the Philippines had sought to negotiate with China 14 and

noted that it is well established that international law does not require a State to continue

negotiations when it concludes that the possibility of a negotiated solution has been exhausted.15

CONCLUSIONS OR RECOMMENDATIONS

Although the contentions of both parties have legal basis, it is still essential to have a

definite stand on such matter. Giving due considerations to those mentioned arguments, I stand

6Award on Jurisdiction, para. 217.

on the enforceability of the arbitral award rendered by the Permanent Court of Arbitration in

favor of the Philippines as against China.

China’s apparent non participation to the arbitration may constitute delay on the

settlement of the dispute. It would just prolong the conflicting claims of the countries involved.

Furthermore, dispute should be resolved peacefully since the Philippines, China and the rest of

the disputed states have ratified UNCLOS. The UNCLOS has created a dispute settlement

mechanism for all and any kind of dispute under the sea. China agreed to that through its

ratification. As such, the Philippines used UNCLOS as a vehicle to resolve the dispute because

upon ratification, the states agreed to be bound by the dispute settlement mechanism. Whether

there is a dispute at the time you ratify or not, it does not matter. It is a way of settling this

dispute peacefully in accordance with international law. Since the Arbitral Tribunal lawfully

acquires jurisdiction over the matter, the arbitral award I therefore final and binding upon the

parties. Hence, the Philippines must continue to seek for the recognition and enforcement of the

arbitral award.
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SOURCES:

1. https://en.wikipedia.org/wiki/Philippines_v._China

2. http://www.un.org/depts/los/convention_agreements/texts/unclos/annex7.html

3. http://globalnation.inquirer.net/159857/antonio-carpio-maritime-dispute-south-china-sea-

west-philippine-sea-sandy-cay-pag-asa-island

4. https://www.rappler.com/previous-articles?filterMeta=china%20vs.%20philippines

5. http://www.imoa.ph/tag/justice-antonio-t-carpio/

6. http://www.kwm.com/en/knowledge/insights/enforcing-foreign-arbitral-awards-in-china-

20160915

7. http://news.abs-cbn.com/focus/07/14/16/transcript-justice-antonio-carpio-on-south-china-

sea-conflict

8. https://academic.oup.com/chinesejil/article/15/2/265/2548386

9. https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf

10. "PHL PRC China Note Verbale".

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