After China snub, what now?

By ROMEL R. BAGARES
VERA Files

Atty. Romel R. Bagares

JUST as pundits have predicted, China soon announced it is not taking part in the arbitration proceedings initiated by the Philippines over the two countries’ territorial dispute in the West Philippine Sea (South China Sea for the Chinese).

So, what happens next – does this mean an abrupt end to the Philippines’ quest for an effective legal solution to the riddle of the Chinese Nine-Dash Line claim?

The nine-dash line (see markers in green) being claimed by the People’s Republic of China.

The nine-dash line (see markers in green) being claimed by the People’s Republic of China.

Well, not quite.

Or at least, not yet.

The Philippine case against China was anchored on Annex VII of the UN Convention on the Law of the Sea (UNCLOS).

It’s therefore necessary to discuss first what an ANNEX VII arbitration is about.

The nine-dash line (see markers in green) being claimed by the People’s Republic of China.

The UNCLOS has specialized rules for dispute resolution among member states. Where the issue is the interpretation or application of the treaty –as the Philippines claims in this case – Part XV of the treaty applies.

Under Part XV, there are two ways of determining the venue for resolving disputes. Under the first mode, as soon as a state opts to become a party to the UNCLOS, in accordance with Art. 287 (1) of the treaty, it may identify one or more of the following bodies as means for settling disputes of interpretation or application of the law: (a) the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany; (b) the International Court of Justice in The Hague, The Netherlands; (c) ad hoc arbitration (in accordance with Annex VII of UNCLOS); or (d) a “special arbitral tribunal” constituted for certain categories of disputes (also established under Annex VIII of UNCLOS).

The second mode is a resort by default to ad hoc arbitration under ANNEX VII in the following situations: (a) if a State has not expressed any preference with respect to the means of dispute resolution available under Article 287(1) of UNCLOS and has not expressed any reservation or optional exceptions pursuant to Article 298 of UNCLOS; and (b) if the parties have not accepted the same procedure for the settlement of the dispute, subject to same exceptions or reservations under Article 298.

Simply put, unless the parties agreed to the contrary, the default mode for question of interpretation and application of the UNCLOS or relevant treaties is an arbitration under ANNEX VII.

Read the full story >> After China snub, what now?