No arbitral court to hear Philippine plea?

The Permanent Court of Arbitration at The Hague that handed down the 2016 ruling generally favorable to the Philippines in its maritime dispute with China is not really that “permanent.” It’s no longer there, says an arbitration expert.

Having done its one-time job, the tribunal no longer exists to hear another round of arbitration session as acting Chief Justice Antonio Carpio, a prominent member of the Philippine team that presented Manila’s case before the PCA, had suggested.

In a TV interview this week, Carpio no longer mentioned his suggestion that a new arbitration be initiated against China in view of its Coast Guard’s boarding Filipino fishing boats at the Panatag (Scarborough) shoal and seizing the fishermen’s catch.

Instead, Carpio proposed that a request be made for the arbitral tribunal to order China, the Philippines and Vietnam to meet and craft a code of conduct regarding fishing in Panatag (Huángyán Dao to the Chinese). 

Asked by Postscript to react, lawyer Mario E. Valderrama, founder and first president (now president emeritus) of the Philippine Institute of Arbitrators (PIArb), said: “I do not think that that is possible.”

He explained: “The arbitral tribunal has no imperium, that is, it cannot enforce its own orders.

“Vietnam is not a party to the arbitration. It is not bound by the award because arbitration is both parties and case specific, that is, binding only on the parties and only with respect to the particular dispute/s involved.”

(Although not a party, Vietnam was among the countries mentioned in the PCA’s award as entitled to fish at the traditional Panatag waters together with its neighbors China and the Philippines. Vietnam, however, has not shown interest. – fdp)

More important, according to Valderrama: “The arbitral tribunal does not exist anymore. The arbitrators are akin to temporary employees. Job description: to resolve the dispute between the parties.

“The arbitrators already did their job when they issued their award on the merits. Their reason for being does not exist anymore.”

As already pointed out, the PCA has no force or power to see to the execution of its ruling. So the parties (the Philippines and China) are left to their own devices in following, ignoring or rejecting the award.

At the onset, China questioned the jurisdiction of the tribunal created under the United Nations Convention on the Law of the Sea (to which both states are signatories). When Beijing failed to stop the process, it served notice that it would neither participate nor recognize whatever be the outcome of the proceedings.

But by that time, the tribunal had gathered sufficient official statements made by China and public and scientific records to constitute what it thought could define China’s official position on the issues, although the Chinese did not formally participate in the arbitration.

Another point made by Carpio on TV is that waters beyond the Philippine territorial sea are part of the high seas and belong to all mankind.

On that basis, Valderrama said: “Now, maybe, discussions premised on the proposition that the waters in the Philippine EEZ are Philippine waters would stop.

“Along that line, ‘reefs’ are part of the sea and therefore cannot be owned by anybody. Still, UNCLOS gave special rights to the coastal state over ‘reefs’ within the state’s EEZ. Those special rights should be taken in relation to the grant of exclusive economic rights over the resources in the state’s EEZ.”

• Sandy Cay lost to China – Alejano

Magdalo Rep. Gary Alejano, meanwhile, claimed that the Philippines has lost Sandy Cay to China – and challenged Foreign Secretary Alan Cayetano to make good his promise to resign if the Duterte administration loses even just a single island to China.

Alejano said China is in effective control of Sandy Cay, which is within the 12-nautical-mile territorial waters of Pagasa, the main island in the fifth class municipality of Kalayaan in the Spratly group.

Pagasa island is a thriving barangay of around 200. Part of Palawan, it holds regular elections, has a clinic, and runs an elementary school where children sing the national anthem as the Philippine flag is hoisted.

It has a rundown airstrip – a modest one compared to the military-grade landing fields built by China on its artificial islands in disputed waters. A small military detachment keeps watch.

As Sandy Cay is within Pagasa’s territorial waters, it is part of Philippine territory. But the Manila government appears hesitant to take full possession over Beijing’s objection.

China’s reclamation work in nearby reefs had reportedly contributed to Sandy Cay’s natural buildup with materials stirred and carried by the current. It now always appears above water even at high tide. Having become a “rock,” Sandy Cay is now entitled to its own 12-nm territorial sea.

Valderrama said that while Sandy Cay’s development into a “rock” is interesting, it could raise a problem: “Unfortunately, China and the Philippines have agreed on several ‘red lines’ that none of them is supposed to cross.

“One of the Philippine ‘red lines,’ to which China agreed, is that there would no longer be any taking over of any uninhabited feature in the Philippine EEZ. And, as far as I know, China is complying with its agreement.

“So, while it may be that the Philippines should take control of Sandy Cay, regardless of whether it is a ‘reef’ or a ‘rock,’ the problem is that the Philippines would be violating its own ‘red line’ if it were to do so.”

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ADVISORY: All Postscripts can be accessed at manilamail.com. Follow author on Twitter as @FDPascual. Email feedback to [email protected]