Philippine sums up arbitration case vs China

MANILA, Philippines – 27. Since there are no overlapping entitlements beyond 12 M, the Tribunal is free to rule that China’s actions at Mischief Reef, at Second Thomas Shoal and elsewhere violate the Philippines sovereign rights and jurisdiction.

28. Last Thursday, Professor Oxman made clear what the practical consequences of deciding that even a single feature in the Spratly Islands generates entitlement beyond 12 M would be. China regards its entitlements in the South China Sea as excluding those of the Philippines and of Vietnam, Malaysia, Indonesia and Brunei as well.

It has no regard for the entitlements of other States. China is also more than willing to use force and the threat of force to enforce its perceived entitlements, even where it has none.

29. If the Tribunal found that China has a potential entitlement to 200 M on the basis of a speck of broken coral and sand in the middle of the South China Sea, it would hand China the “golden key” that Mr. Martin referred to last Wednesday. The Filipino people would only be able to benefit from the natural resources of our EEZ and continental shelf on China’s terms, if at all. In the real world, that would mean not at all.

30. It would also perpetuate in another form, the same disputes, the same danger and the same instability that China currently exploits without restraint.

And this time it would be much worse: the possibility of a just solution obtained through arbitration will have been exhausted. We will have no other legal avenue of confronting China’s unlawful conduct.

31. Mr. Martin and Professor Oxman showed that the very purpose of Article 121(3) is to prevent such perverse results by denying tiny islands expanded maritime zones. The need for clear and definitive legal constraint is obvious. And it is to you, Mr. President, Members of the Tribunal, to whom we confidently entrust the task of providing the necessary constraint.

32. Mr. President, distinguished Members of the Tribunal, if I may say so, there is no greater contribution to international peace and security the Tribunal could make than to decide that none of the features in the Spratly Islands is capable of generating any entitlement beyond 12 M.

The unjustifiable encroachment on the sovereign rights of other States, as well as the global commons, would be avoided. The importance of the sovereignty disputes over these tiny bits of land would be reduced in importance. They would cease to be a casus belli. And the inexcusable harm to the environment resulting from efforts to solidify expansionist maritime claims would be diminished.

33. Mr. President, distinguished Members of the Tribunal, we recognize that the Tribunal’s mission is judicial. The Tribunal must decide the claims on the basis of the facts and the law, in this case UNCLOS. We submit that on that basis alone, the Tribunal must sustain all of the Philippines’ claims, especially in regard to the maritime entitlements of the Parties, and the exclusive sovereign rights and jurisdiction of the Philippines within 200 M of its coasts, except for the 12 M territorial seas around the disputed  insular features.

34. That said, your mandate to achieve justice is not carried out in a vacuum. Judges and arbitrators are not expected to be oblivious to the realities on the ground. UNCLOS is the United Nations Convention on the Law of the Sea. The object and purpose of the Charter, as well as those of the Convention, are far from irrelevant. These purposes include the maintenance and strengthening of international peace and security. Nothing would contribute more to these objectives than the Tribunal’s finding that China’s rights and obligations are neither more nor less than those established by UNCLOS. And that the entitlements of the tiny insular features it claims are limited to 12 M.

35. Finding otherwise would gravely undermine these same objectives. It would leave the Philippines, and its ASEAN neighbors, in worse straits than when we embarked on this arbitral voyage.

It would convert the nine-dash line, or its equivalent in the form of exaggerated maritime zones for tiny, uninhabitable features, into a Berlin Wall of the Sea. A giant fence, owned by, and excluding everyone but, China itself.

36. We are confident that you will interpret and apply the law in a way that produces a truly just solution. That is the best way indeed, the only way to craft a legal solution that truly promotes peace, security and good neighborliness in the South China Sea.

37. Mr. President, distinguished Members of the Tribunal, all that remains for me to do is to say thank you. First, I wish to thank our counsel. The Philippines could not have entrusted this case, our fate, to more skilled, principled and determined hands.

I know they share the Philippines’ firm conviction about the need to uphold the international rule of law as the bedrock of peace, order and stability in our world.

38. Second, I wish to thank the extraordinarily able personnel of the Permanent Court of Arbitration who have provided all of us with the diligent assistance that has made these proceedings run so smoothly. We know none of this would have been possible without them.

39. And finally, Mr. President, distinguished Members of the Tribunal, on behalf of myself, on behalf of our President, Benigno S. Aquino III, and on behalf of all the Filipino people, I wish to humbly thank each of you for the care, dedication, wisdom and courage with which you have conducted these proceedings.

We confidently entrust our fate, the fate of the region and, indeed, the fate of the Convention to you. We know that in your capable hands, the rule of law will not be reduced to the quaint aspiration of a time now past, but rather will be accorded the primacy that the founders of the United Nations and the drafters of UNCLOS envisioned.

40. Mr. President, Distinguished Members of the Tribunal, you have our deepest gratitude. May I ask that you kindly invite the Honorable Solicitor General to the lectern to present the final Submissions of the Philippines.