Philippine memorial on dispute with China

by YEN MAKABENTA

If you found China’s 4,800-word position paper on the South China Sea dispute lengthy and exhausting, consider and gasp at the dimensions of our government’s memorial on the dispute for the arbitral tribunal. It consists of ten volumes, 40 maps, and totals nearly 4,000 pages.

To the construction of this massive memorial (a memorial is, by definition, a written statement of facts submitted to a government, authority, court, etc, in conjunction with a petition), seven government departments, the office of the president, and a platoon of Filipino and international lawyers and legal advisers contributed their expertise.

New York City is no stranger to voluminous arguments and evidence from Philippine officialdom. The government of President Cory Aquino sent two planeloads of evidence to the Big Apple for the trial of Madame Imelda Romualdez Marcos. All for naught. She was acquitted.

Let’s pray this new enterprise of our ship of state is not stricken by similar futility.

Statement of Philippine foreign secretary
To complete and balance our discussion of the dispute between China and the Philippines (“The South China Sea Dispute,” Times, December 4, 2014), I am reprinting in my column today the official statement delivered by Philippine foreign affairs secretary Albert del Rosario on the submission by the Philippine government of its memorial to the Arbitral Tibunal that is hearing the country’s case against China.

The DFA secretary’s statement, as recorded in the Official Gazette, reads as follows:
“Statement of Foreign Affairs Secretary Albert del Rosario
“(Delivered on March 30, 2014)

“Today, the Philippines submitted its Memorial to the Arbitral Tribunal that is hearing the case it brought against the People’s Republic of China under the United Nations Convention on the Law of the Sea in January 2013.

“The Philippines’ Memorial was submitted in conformity with the Rules of Procedure adopted by the five-member Arbitral Tribunal last August, which established March 30, 2014, as the due date for its submission.

“The Memorial presents the Philippines’ case on the jurisdiction of the Arbitral Tribunal and the merits of its claims. It consists of ten volumes. Volume I, which is 270 pages in length, contains the Philippines’ analysis of the applicable law and the relevant evidence, and demonstrates that the Arbitral Tribunal has jurisdiction over all of the claims made by the Philippines in its Statement of Claims, and that every claim is meritorious. It sets out the specific relief sought by the Philippines in regard to each of its claims, and shows why it is entitled to such relief.

“Volumes II through X contain the documentary evidence and maps that support the Philippines’ claims, all of which are cited in Volume I. Volumes II through X consist of more than 3,700 pages, including more than 40 maps, for a total submission of nearly 4,000 pages.

“The Memorial is the result of an enormous, collaborative effort by the extremely capable and dedicated legal team that has been serving the Philippines in this important case, headed by Solicitor General Francis Jardeleza and a team of lawyers from various agencies, including the OSG, DFA, DOJ, and the Office of the President.

“I also wish to thank other government agencies for their invaluable contribution in the generation of documents including:

The Department of Justice (DOJ);
The Department of National Defense (DND), particularly the Armed Forces of the Philippines (AFP), Philippine Navy, and Philippine Air Force (PAF) ;
The Department of Transportation and Communications, particularly the Philippine Coast Guard (PCG);
The Department of Environment and Natural Resources, specifically the National Mapping and Resource Information Authority (NAMRIA);
The Department of Energy (DOE);
The Bureau of Fisheries and Aquatic Resources (BFAR);
The Foreign Service Institute (FSI);

And other agencies such as National Museum, National Historical Commission, National Archives, DILG’s Philippine National Police, Municipality of Kalayaan and the UP Marine Science Institute.

“We are also most grateful to our international legal advisers led by Paul Reichler and his team of international lawyers, including Mr. Lawrence Martin, Professor Bernard Oxman, Professor Philippe Sands and Professor Alan Boyle for their invaluable guidance and assistance.

“Ordinarily, the next step in an arbitration of this nature would be the filing of a Counter-Memorial by the other Party. However, it is currently unknown whether China will appear in the case, or whether it will continue its present policy of abstaining from the proceedings. Under the Rules of Procedure, the Arbitral Tribunal will decide on next steps and advise the Parties.

“The Philippines will follow the guidance of the Arbitral Tribunal in regard to the publication of the Memorial. In the meantime, out of respect for the Tribunal and the arbitral process, it is obliged to preserve confidentiality.

“With firm conviction, the ultimate purpose of the Memorial is our national interest.

“It is about defending what is legitimately ours.

“It is about securing our children’s future.

“It is about guaranteeing freedom of navigation for all nations.

“It is about helping to preserve regional peace, security and stability.

“And finally, it is about seeking not just any kind of resolution but a just and durable solution grounded on International Law.

“Thank you very much for your kind attention.”

Where the case goes from here
Beyond describing its heft, the DFA has not written or presented a concise summary of the memorial that can inform the media and assure worried Filipinos that its complaint has a good chance of obtaining a favorable verdict from the tribunal.

In a story based on an event in New York City and published last November 6, the Manila Bulletin reported that the Arbitral Tribunal can assess the merits of the case filed by the Philippines and then issue a final and binding judgment to address the maritime dispute, despite the refusal of China to participate in the proceedings.

Professor Sean Dean Murphy of the George Washington University Law School stressed this point when he addressed the Margins of International Law Week, held at the UN headquarters in NYC.

“Courts and tribunals do not regard non-participation as resulting in a default,” said Professor Murphy, who was elected in 2011 by the UN General Assembly to the International Law Commission. “Because if all it took is not showing up for there to be no ability for the tribunal to issue a judgment, the whole system will fall apart.”

Professor Murphy’s statement finds basis under Article 9 of Annex VII of UNCLOS, which states that “absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”

“We do live in a world where a lot of people believe in the law,” Murphy said. “Even if you don’t like the decision, the tendency is to be law-compliant and, therefore, to follow the decisions rendered.”

yenmakabenta@yahoo.com