Philippines v. China: The Endgame as Prelude
- Jay L. Batongbacal, PhD
With the conclusion of the oral arguments on the merits phase last month, the arbitration initiated by the Philippines against China finally moves into the endgame. Although China was given one final opportunity until 01 January 2016 to submit comments on the arguments and evidence presented thus far, it is not expected to do so. The Tribunal has announced commencement of deliberations and that it will decide the case next year.
The procedural victory that the Philippines scored in the preliminary jurisdictional phase affirms the relevance of the United Nations Convention on the Law of the Sea to the South China Sea disputes especially with respect to its maritime aspects. The tribunal has determined that the 2002 Declaration of Conduct and similar regional agreements are not obstacles to the resort to Annex VII arbitration, and that to do so there is no need for prior negotiations on every specific issue brought for arbitration. Unilateral resort to arbitration on an issue that has not been resolved by the parties despite years of negotiations is not considered an abuse of rights in international law. China's insistence that such unilateral resort contravenes the coastal States' right to choose the means by which it should settle disputes has been dispensed with.