Letter urging Vietnam's leaders to take China to court
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URL for the letter: https://docs.google.com/document/d/1RSjufZiPBIn4cmnWvVgMKOz_zLB7mfXc1uWxvbmRuYM/edit
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Where are we in the proceedings?
The Arbitral Tribunal has adopted rules of procedure, which include a schedule. The Philippines is required to submit its memorial (its main written pleading), which addresses both jurisdiction and merits issues, by March 30, 2014. Normally, the respondent state (in this case China) would be given an equal amount of time (eight months) to submit its counter-memorial. Then, in the normal sequence, the parties would have had a second round of written pleadings, with the Philippines getting four or five months to submit a reply, and China getting the same amount of time to submit a rejoinder. However, since China has announced that it will not actively participate in the arbitration, the tribunal only fixed the date for the filing of the Philippines’ memorial.
How soon could we get a result?
Arbitrations under the Law of the Sea Convention have normally taken between three and five years from beginning to end. However, in all those cases, there were two parties fighting it out. The proceedings will go a lot faster in this case if China holds to its current position not to actively participate. Since the tribunal has not yet decided on the procedure after the Philippines submits its memorial, it is difficult to predict how long beyond that date it will take to complete the arbitration. I imagine that, after reading our memorial, the members of the Tribunal will place themselves in China’s position and try to identify counter-arguments China might have made, and then give us a chance to address these hypothetical counter-arguments as well as any questions the members of the tribunal might have. I think the post-memorial process could take anywhere from six to 12 months [bringing us to] somewhere between April and October 2014 for the completion of the case.
What exactly is Manila’s legal case?
The Philippines’ core claims are these:
1. The nine-dash line is inconsistent with international law, as set forth in the U.N. Convention on the Law of the Sea, and does not indicate China’s maritime entitlements in the South China Sea, which are limited to a 12-mile territorial sea, and a 200-mile continental shelf and exclusive economic zone.
2. The Philippines, like China (and the other coastal states along the South China Sea), has entitlements to a 12-mile territorial sea, and a 200-mile continental shelf and exclusive economic zone.
3. Scarborough Shoal is a “rock”, as defined in Article 121(3) of UNCLOS, such that it generates a maritime entitlement only to a 12-mile territorial sea, and not to a 200-mile continental shelf or exclusive economic zone. Thus, all of the water beyond 12 miles from Scarborough Shoal falls within the maritime entitlements of the Philippines, and not of China, out to a distance of 200 miles from the coast of Luzon.
4. Of the eight features in the Spratlys occupied by China, five are either submerged reefs or low-tide elevations (upon which China has constructed installations), which generate no maritime entitlement, and three are “rocks” that generate entitlements only out to 12 miles. The conclusion is that China’s maritime entitlements in the South China Sea, beyond 200 miles from its mainland coast, are very limited. It is possible that China gets nothing from these features. Sovereignty over Scarborough and the three Spratly rocks is contested, and the tribunal does not have jurisdiction to decide questions of sovereignty over islands.
Who will speak for China on the tribunal?
The arbitrators are required to satisfy themselves that the Philippines’ claims are well-grounded in fact and law. They have many means at their disposal to do this. They can access publicly available maps and charts, and scholarly studies of the insular features put in issue by the Philippines. They can hire technical experts to advise them. They can review China’s laws, decrees and announcements and explanations about the nine-dash line, and its other maritime claims in the South China Sea.
Does Foley Hoag worry about offending China?
[In previous legal cases] my Foley Hoag colleagues and I faced a choice: fight for justice, or avoid antagonizing the rich and powerful who could, if we cultivated them instead of suing them, become very profitable clients for the firm. Because we became lawyers to fight for justice, we have never hesitated in making these choices.
What if China simply ignores a judgment that goes against it?
In more than 95% of international cases — litigation and arbitration before various international courts and tribunals — the states comply with the judgment, even if they are unhappy with it. There are at least two reasons for this. First is reputation and the influence that comes with it. The second reason is that many states understand it is to their advantage, and the advantage of others, to live in a rules-based system. Now, in the case of China, we see a country that is a great power that wishes to project its influence across the international community. China also advertises itself as the anti-imperialist great power, in contrast to the U.S., Russia and others. Think of the economic advantages that will accrue to the richest and most powerful nation in the region if these disputes are resolved and investment in resource extraction from the South China Sea begins.
– Andrew Browne. Follow him on Twitter @andybrownewsj
Source:
http://blogs.wsj.com/chinarealtime/2013/10/15/qa-the-philippines-vs-china-in-south-china-sea-claims/
