WILL THE PHILIPPINES’S LAWSUIT BE THROUGH THE COURT OF ARBITRATION? SCSC - In his article on the Japan Times, Mark Valencia shares that the Council of Arbitrators for the lawsuit filed by the Philippines, concerning the dispute over the East Sea with China, is being placed in a dilemma as how to make a judgment. What is then the dilemma? What sort of judgment, the Court of Arbitration could make? The East Sea is where interests of countries within and outside the region are interwoven, including interests of non - regional powers such as the United States (US), India, Japan, and the EU, etc. Disputes over the East Sea are very complicated with the involvement of many parties, including China - a major power. Thus, the judgment to be made by the Court on disputes over the East Sea will be extremely difficult. In addition to legal aspects, the Arbitrators might also take into consideration political ones while dealing with this case. Anyhow, irrespective of the objection by China, the process of the Court of Arbitration regarding the Philippines’ case will be continued in line with the procedures as provided for in the 1982 UN Convention on the Law of the Sea (UNCLOS). The Court of Arbitration has been established; the Arbitrators have adopted the rules of proceedings of the Court of Arbitration and fixed the timeline for the Philippines to submit its Document of Arguments, that is March 30, 2014. Afterwards, China would have 6 months to present its Document of Advocates before the Court started with the case. One can pose a question whether the Court of Arbitration has competence to consider the substance in the lawsuit by the Philippines? This is a very difficult decision since China has already declared that the Court had no competence. The responsibilities of the Arbitrators are quite heavy. If the Court decides that it has no competence to consider the lawsuit as expected by China, particularly regarding China’s “nine - dotted line” claim on the East Sea, this will certainly be a decision opposing the entire international community as there is no single country, except China, supports the “nine - dotted line” claim. Admitting that it has no competence also means that the Court supports unjustified demands of China and offers China reasons to escalate in the East Sea. This is also the rejection of provisions contained in the 1982 UNCLOS. We just celebrated the 30th Anniversary of the 1982 UNCLOS and regard it as the Constitution of the Oceans, hence given their responsibilities; the Arbitrators cannot make a wrong decision going against the objectives and principles of the 1982 UNCLOS. There is a viewpoint that the Arbitrators have to take into consideration the views of China since China is a major power, which is growing from strength to strength, and the Arbitrator do not want to offend China. But if the Arbitrators are to decide that the Court has no competence, then they will be opposing the US, a sole superpower that is strongly backing the lawsuit of the Philippines. Recently, the US has openly declared its support for the lawsuit of the Philippines at various levels, including statements by the US Secretary of State, and at the same time, its opposition against any pressure or threat imposed on the plaintiff (it implies opposition to actions by China versus the Philippines). Furthermore, in order to please China, the Arbitrators will lose their honor and reputation in the international arena. They will also be objected by international scholars, researchers and lawyers who have always been strongly criticizing the “nine - dotted line” claim as legally groundless whatsoever. According to many analysts, a good solution for the Arbitrators of the Court of Arbitration in the case of the Philippines is not merely working on the question of competence. Instead, they should consider both issues of competence and the lawsuit’s substances at the same time. There have been many similar precedents worldwide. Furthermore, in order to make a decision over the competence, it is necessary to carefully study specific substantive aspects of the “nine - dotted line” claim to make clear whether the claim is in line with the international law and the 1982 UNCLOS. According to some sources, among the Rules of Proceedings of the Court of Arbitration that were adopted by the end of August 2013, there is provision regarding the consideration of both the competence and the substance of the lawsuit. It seems that the Arbitrators have foreseen all difficulties and complexities concerning the case and they are fully prepared for this possibility. Obviously, the final judgment depends also on arguments of each side. But it is quite predictable that no single prestigious Arbitrator will judge the “nine - dotted line” claim as a legal one. Let’s have a careful look into each of the Arbitrators of the Court of Arbitration in order to anticipate their final possible judgment. The Court consists of five members: - Mr. Thomas Mensah, of Ghanaian nationality, is the President of the Court of Arbitration. He was the first Judge of the International Court of the Law of the Sea and possesses a lot of experiences in serving as Arbitrator and ad - hoc Judge in cases handled by the Court of Arbitration under Annex VII and ITLOS. Mr. Mensah holds a strong view of protecting the principles and legal regimes of the 1982 Convention on the Law of the Sea. Now, he has already retired so is not under any influence or pressure from China. - Mr. Rudiger Wolfrum, a German, currently a Judge of the International Court under the Law of the Sea, is naturally supportive to the view of the Philippines since he is an Arbitrator appointed by the Philippines. - Mr. Jean - Pierre Cot, a French man, also currently a Judge of the International Court under the Law of the Sea, is a person having strong view in protecting the objectives and provisions in the 1982 UN Convention on the Law of the Sea. - Mr. Alfred Soons, a Dutch gentleman, Professor on Public International Law, Director of Public International Law Institute and Director of the Law of the Sea Institute, Utrecht University, the Netherlands, is a strong supporter of values of international law, including provisions of the 1982 UNCLOS, so he cannot be sympathetic with the groundless “nine - dotted line” demand on the East Sea. - Mr. Stanislaw Pawlak, a Polish, currently a Judge of the International Court under the Law of the Sea, is a cautious man so he will take a great deal of time to consider before making his decision concerning the dispute on the East Sea. A worthy note is that Poland, his home country, a small country situated next to Russia, is always under pressure, and therefore he cannot be sympathetic to a big hegemonic, chauvinistic China. Mr. Stanislaw Pawlak cannot support the groundless demand on the East Sea as well as the provocative actions, bullying the neighboring countries by China. Looking at the composition of the Court of Arbitration, it appears that a decision, if is to be made, will be in favor of the Philippines. The Arbitrators will have to preserve their prestige and that of the Court, so they have to act and decide according to provisions of the international law rather than being subjected to influence from any party to the dispute. Using these criteria, China’s “nine - dotted line” demand will be rejected. China is very much concerned with the lawsuit by the Philippines since it is aware that if its demand is to be considered, certainly the judgment will not be in its favor because it has no legal basis. It is because of this reason that China has recently undertaken a number of actions to court and win over a number of ASEAN Member Countries so as to isolate the Philippines. But this cannot deter the Philippines in the lawsuit since the Philippines has the justice. The proceedings can last two or three years, but we are confident that with the ability and clear - sightedness of the Arbitrators of the Court of Arbitration in the lawsuit of the Philippines, the justice and international law will prevail in the East Sea. China has declared that it would not observe the judgment of the Court, but the judgment will remain a legal document judging over the legal interests and benefits of each State in the East Sea region. If China acts without respecting the judgment of the Court, it will be condemned by the entire world and the image of China will be further blemished in the “eyes” of the international community. China has to weigh this factor when it conducts any action in the East Sea.
Posted on: Tue, 05 Nov 2013 17:08:18 +0000
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