Game On! Philippines Files (4000 page) Memorial in China UNCLOS Arbitration

by Julian Ku

Just in time for the odd Sunday filing deadline, the government of the Philippines announced that it had submitted its memorial in its arbitration with China under UNCLOS.

Ignoring a possible backlash from China, the Philippine government transmitted the document, called a “memorial” in international arbitration parlance, on Sunday to the Netherlands-based Permanent Court of Arbitration where a five-member tribunal operating under the United Nations Convention on the Law of the Sea will hear Manila’s complaint.

“Today, the Philippines submitted its memorial to the arbitral tribunal that is hearing the case its brought against the People’s Republic of China under the United Nations Convention on the Law of the Sea,” Foreign Affairs Secretary Albert del Rosario told a news conference.

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

Manila declined to release a copy of the memorial as it has yet to be reviewed by the court.

But Del Rosario said the Philippine “memorial” consists of “ten volumes with maps,” “nearly 4,000 pages” and will fortify the Philippine case which seeks to declare China’s exaggerated claim illegal. A hard copy will be forwarded to the tribunal on Monday.

I hope and trust that at least volume I of the memorial (containing the 270-pages of actual legal argument and analysis) is released publicly soon.  I do think the additional 3700-plus pages of annexes is overkill in a case where the other side is highly unlikely to bother answering.  Still, it will be an interesting public statement of the Philippines’ best legal arguments.  I have grown increasingly skeptical of this Philippines argument, both from a legal and a strategic standpoint.  But I would like to see their arguments.

http://opiniojuris.org/2014/03/30/game-philippines-files-4000-page-memorial-china-unclos-arbitration/

8 Responses

  1. ” I have grown increasingly skeptical of this Philippines argument, both from a legal and a strategic standpoint.”
    Please explain what  argument or arguments  of the Philippines you are skeptical about. Why?
    Do you believe the legal arguments of China  are stronger?   Why? What are China’s arguments?
     

  2. Philippines supports peaceful resolution. China deliberately provoking trouble in seas.

    Philippines will not tolerate China’s occupation of Ayungin/2nd Thomas Shoal, and Scarborough.

    China will certainly face consequences for its provocative and bullying actions.

    Philippines is so intent to saving relations with China, but the latter is so bullish in her actions.

    Philippines is urging China to correct its mistake and return to the right track of resolving the dispute. China should stop going any further down the wrong track, so as to avoid further damage to bilateral relations.

    China is “seriously damaging” the bilateral ties with the Philippines by unbecoming of an good natured neighboor.

    Philippines find it very hard to understand the moves of China, and we are deeply disturbed by and concerned with the consequence of such moves.

    China is attempting “to slowly invade the Philippine islands”. We pity China for taking such actions, unbecoming friendly to nations surrounding her.

  3. The ambiguity of the 9 dash line would be China’s achilles heel. In what way can China prove the legality of the 9 dash line in accordance to UNCLOS principles?

  4. Here is the overview of philippine case . Speech delivered by Supreme Court Senior Associate Justice Antonio T. Carpio before the Philippine Women’s Judges Association, 6 March 2014http://www.interaksyon.com/article/82146/explainer—protecting-the-nations-marine-wealth-in-the-west-philippine-sea

  5. Under UNCLOS, EEZs must be drawn from baselines of the coast of a continental land or island capable of human habitation of its own. This basic requirement stems from the international law principle that the “land dominates the sea” – or to put it another way, areas in the seas and oceans can be claimed and measured only from land.
    If I am the ITLOS judges, I would toss out the Nine Dash Line case against China. The reason is the sovereignty of the land/island in the Spratlys is currently in dispute and one cannot rule on the seas until the land aspect is clarified.
    ITLOS is just a subset of international law and the judges in ITLOS should seek guidance or at least postpone judgement until she hear from any case China file in ICJ. I hope China file one there to expose Philippines illegal occupation of the Kalayaan islands starting from Tomas Cloma since 1947 right after US grant Philippines independence on 4th July 1946 till pretext res nullis occupation on May 1956. ROC take back the Taiping Island in Sept 1956. The whole illegal occupation of Kalayaan annexed by Marcos on 1978 and also Anyunjin Reef  intentionally grounded ship were all done illegally and China have documented evidence to prove it.
     
     

  6. @anti China folks
    The Venue Philippines choose to  argue her case against China is suspect. Why not ICJ?  Before we even talk about Nine Dash Line, land aspect should be settled first. I am amplifying here why China is very angry at Philippines as she rightly suspect this is a politicized move, not based purely on legal grounds.
    My esteemed opponent. Please educate me on legal grounds. If you cannot you are showing your lack of ability to understand China’s position and international law. For your convenience I put some fine points here to enlighten you.
    “The real purpose of the Philippine side’s attack on the South China Sea dashed lines is to attempt to deny China’s sovereignty over Nansha Islands and their adjacent waters, and cover up the illegality of the Philippines’ occupation of some islands and reefs of China’s Nansha Islands, which the Chinese side will never accept. No matter how the Philippine memorial is packaged, the direct cause of the disputes between China and the Philippines is the latter’s illegal occupation of some of China’s islands and reefs in the South China Sea. At the heart of the matter are the disputes between the two sides on the sovereignty over islands and reefs. ”
    I wholeheartedly agree! I think unbiased people will agree too!
    http://www.philstar.com/headlines/2014/04/03/1308385/chinas-position-paper-sea-disputes-philippines
    Now you don’t have to agree, but explain why if you think Philippine is right in her case, why she don’t appeal to the highest authority in UN which is the International Court of Justice? Chicken out because you are afraid you will be embarrassed for stealing the Kalayaan and other Spratlys ?
    What Philippines do is like appealing to a lower court/ITLOS, playing politics as she know ITLOS is headed by a Japanese judge who can influence the five judge selections to tilt into Philippines favor. Such a ruling will be a farce if Philippine wins. In ICJ Philippines is afraid this Supreme Court equivalent will embarrassed her as an illegal actor. This is the primary reason why Philippines did not go to ICJ first and choose ITLOS.
    Remember rights to Seas Flow From Land. Start from here and let’s discuss the merits of your case. The Nine Dash Line is a CONSEQUENCE of the ownership of the islands/reefs/shoals, not the other way round. Because this is the Natural Flow of Land To Sea, any disagreement have to be heard in the International Court of Justice FIRST to settle the land issue, THEN the ITLOS Sea aspect.
    Philippines is definitely being dishonest here, attempting to put the cart before the horse. I advise China to file ICJ suit against Philippines pronto if there is negative outcome from ITLOS. A positive ICJ ruling for China will embarrass the Philippines and also expose the politically tainted ITLOS judges.

  7. Here is an interesting take by Inference that Philippines have illegal possession of the Kalayaan Islands, Nansha for China.
    While ITLOS rules on Seas, the EEZ rights  around the Kalayaan Islands that is part of Nine Dash Line will be determined by who owns the Kalayaan.
    We all know Tomas Cloma premeditated to acquire Freedomland/Kalayaan Islands from 1947, soon after Philippines independence on 4th July 1946 till May 1956 when he use res nullis to lay claim to the islands. Then in Sept 1956, Taiwan, ROC send navy ships there to take back Itu Aba/Taiping Island, the biggest island in the Kalayaan/Pag Asa/Nansha group of islands. If Philippines really have ownership to the Kalayaan islands, she will have fought back and reclaim the Itu Ab island. The first opportunity is for Philippines to do so on behalf of her citizen Tomas Cloma.
    Tomas Cloma was working in cahoot with the Philippines government to acquire Freedomland /Kalayaan as Philippine government herself dare not openly do it. Tomas even dined and was seen off by Carlos Garcia, the senator, VP, later president of Philippines. So it is like an accomplice to a crime.
    The second opportunity to take back Itu Aba/Taiping Island was when Marcos annex Kalayaan from Tomas Cloma in 1978 but he didn’t make Kalayaan/Nansha whole.
    Philippines also mentioned the Kalayaans were for Security, that is driver for acquiring them, so it is not like they actually owns them in the first place. Philippines acquire Kalayaan via Tomas as part of elaborate scheme to use Kalayaan as a security outpost, fearful of other nation like China or Vietnam having military bases so near to her. The fact that Philippines mentioned Kalayaan in this Security context can be used by the ITLOS judges to INFER that Philippines have no ownership, thus no EEZ around Kalayaan in the Nine Dash Line covering that area.
    The point is since Philippines did not fight against Taiwan, ROC to take back Itu Aba/Taiping Island tells a lot about Philippines own  lack of confidence about her ownership of the Kalayaan. So she just hang on to Kalayaan and avoid drawing further international scrutiny, especially from the United States. Therefore one can INFER from here that Philippines claim to Kalayaan is very weak, non existent as I explained in earlier post. This lack of action against Taiwan to take back Taiping Island, right in the heart of the Kalayaan/Pag Asa/Nansha Islands GROUP is evidence enough Philippines have no self confidence of ownership of these islands.
    I hope the ITLOS judges consider this mix of events, current occupants of these islands and conclude since the Kalayaans status is ‘not belonging to Philippines’ , therefore they should conclude that Philippines Nine Dash Line case against China in this segment of the Nine Dash Line should be thrown out and there will be no 200 miles EEZ privileges for Philippines around the Kalayaan.
    Another way of saying is the judges looking at the Kalayaan/Nansha group of islands and see it does not make legal sense for Philippines to have ownership of only the smaller islands while Taiwan /ROC have the biggest island Itu Aba/Taiping. If not for Taiwan’s distraction in civil war with China, the whole Kalayaan islands would have being taken back by Taiwan or even China, both weak at that time, so the settlement of this ownership was postpone till the present time. Hence the continuing dispute and no one should be surprised why China is still laying claim to the islands.
    With this conclusion, China have every right to fish, drill in the seas around Kalayaan just like other disputants.

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