ROUND TABLE DISCUSSION ON THE WEST PHILIPPINE SEA 1-5pm, 27 February 2014 2nd Flr.

Conference Room, UP Law Center NOTES: I. MAIN PRESENTATION [please refer to power point presentation] II. REACTION PRESENTATIONS A. Atty. Roques Reaction [may also refer to power point presentation] On the Arbitral Trabunals Jurisdiction Atty. Roque emphasized (quite emphatically) that the Court has jurisdition over china because it is a signatory. He equally highlighted the fact that the Court has jurisdiction over the subject of the application (involved are competing claims on the West Philippine Sea involving interpretation of UNCLOS provisions) Atty. Roque then clarified that none of the issue on the subject matter jurisdiction expressed by China through various statements is viable. He concluded that, accordingly, the Philippines may ask for interim measures in its memoranda. Chinese View of its 9-Dash Claim on the West Philippine Sea Atty. Roque summarized what can be considered as the Chinese view, as can be gleaned from the statements made by Judge Xue: 1) China has always had a sovereign claim over the area covered by 9-dash line. 2) China has never abandoned its historical claim, and no country has ever challenged this claim until the discovery of oil. 3) The maritime zones within the 9-dash line is generated by Chinas land claim. - i.e. Chinas basis for claim on Scarborough it is just part of the nearby island within Chinas territory. 4) For China, before the competing claims on the seas may be settled, the land claims should first be settled. For this purpose, UNCLOS is not applicable. - (As a counter-point, Atty. Roque underlined that the understanding in international law is quite different from the Chinese view as UNCLOS claims exists separately.) 5) China asserts the obligation agreed upon in the summit on ASEAN-China Relations. - Code of conduct requires negotiation between parties, so, for China, the Philippines filing of the application is offensive. (As a counter point, Atty. Roque reiterated the Solicitor Generals position that the Philippines has been seeking discussion and negotiation with China since 1987, to no avail.) B. Dean Magallonas Reaction Philippine Claims in West Philippine Sea Include - Bajo de Masinloc, Scarborough shoal, etc. (inaudible) Philippines Basis for Claims

Dean Magallona underlined that the Philippine claim is well-founded under international law. 1) Effective Occupation a. The Philippines has exercised specific acts of sovereignty in Bajo de Masinloc. - well documented arrests and boarding of erring Chinese vessel by the Philippine Navy b. The Scarborough Shoal is an island. - It is above water even during high tide. - Dean Magallona noted that building safety zones around the shoal was proposed but the Philippine Government failed to implement. - The Shoal has traditionally been used by the Philippine Navy for target practice but such act was never protested by China. c. Kalayaan Group of Islands - As borne by official records under the Marcos Administration, this group of islands was named by a Philippine legislation. d. (sorry forgot the name of the group of islands / reefs / rocks) - During Japanese occupation, the islands were used as a submarine base. - When the Japanese was defeated, it did not clearly cede this group of islands to any state. The San Francisco Treaty covering the surrender of this group of islands by the Japanese occupation forces to the US identified no definite beneficiary. Dean Magallona notes that China was not present in the negotiation and ratification of the San Francisco Treaty but Philippines was there to stake its claim. 2) On the Validity of the Arbitration Proceedings in International Law a. In relation to the generally accepted principles of international law and the U.N. Charter: - All parties shall settle all disputes in a peaceful manner. (Dean Magallona noted that this is to buttress the general prohibition on threat of use of force.) - This means that parties should seek solution by negotiation or other peaceful means of their own choice. (Dean Magallona interprets Of their own choice as pointing to a specific agreement between the parties on a peaceful means.) - Dean Magallona observes that China's rejection of the arbitration process directed towards negating this provision; to make the arbitral award ineffective. b. In relation to the provisions of UNCLOS on settlement proceedings: - The compulsory proceeding: set out in Art. 279, Sec. 2 seems to have a prerequisite in Sec 1. Sec. 1 makes it obligatory to settle disputes in accordance with the abovementioned UN Charter provision, specifically that the mode of settling the dispute must be agreed upon by the parties. Thus, Dean Magallona argues that if we follow the logic of the above UN Charter provision, it is impossible to say, in China's absence, that method was chosen by the parties. - Dean Magallona is of a different view in interpreting this apparent prerequisite. Art 283, Part 3 of the UN Convention mentions that in their obligation to exchange views, parties shall proceed expeditiously. As the Philippines has been seeking dialogue and negotiation with China for the past 17 years, and the latter has been dragging its feet, it has already breached its obligation. Thus, the Philippines is justified in seeking compulsory arbitration. - Dean Magallona goes on to stress that in several international cases, it has been held that the absence of a party does not bar the international court from hearing the case. (example cited: Nicaragua v. US) Further, in other cases non-election of an arbitrator by a party is not a bar to the jurisdiction of the tribunal. Thus, Dean Magallona opines that China's non-participation in the proceedings and non-election of an arbitrator, do not bar jurisdiction of the Arbitral Tribunal to hear the

Philippines application. However, he also states in the same breath that the applicability of these doctrines to UNCLOS disputes need some clarification. C. Dean Pangalanans Reaction On Philippines Recourse to Arbitration Dean Pangalangan started by noting that arbitration is a mode included in peaceful means in settling disputes under the UNCLOS. Thus, according to Dean Pangalanan, the Philippines recourse to arbitration can hardly be described as being in bad faith. Downside of the Recourse of Arbitration Dean Pangalangan however notes that by pursuing this course, the Philippines limits the remedies available to it as consisting only of those within the power of such tribunal. (i.e. settlement of maritime claim will not settle the whole matter on territory). For Dean Magallona there is a consolation in this course of action, whatever the outcome. With the recourse to UNCLOS Arbitration, at least the case will/should settle nature of Chinas 9-dash line claim. He posed the following questions for the Solicitor General to answer: 1) Why has the Philippines not asked for provisional measures? 2) Are the hearings purely on jurisdiction, or purport to answer only issues pertaining to its jurisdiction? III. OPEN FORUM [Legends: OSG Solicitor General Jardeleza; MM Dean Magallona; RP: Dean Pangalanan] OSG: The Gov't is considering asking for provisional remedies in memorial due on Mar. 30. Jurisdiction and merits will be discussed in memorial together. Emphasizes that there is much tactical advantage in lodging the arbitral proceedings: IF you have a strong case, jurisdiction will follow as matter equity. But position on jurisdiction will always be discussed in memorial. Q: Can China change its mind and join the arbitration proceedings? OSG: Yes. Q: Can other countries join the proceedings? OSG: They can even opt to become a party. (OSG) Q: Will China observe the decision? OSG thinks that China wants to be part of the international community in good standing. There will be repercussions to its standing if it ignores an independent international tribunal's decision. Q: If China withdraws membership from UNCLOS, how will it impact the validity of the proceedings? OSG: No comment. RP: That is what happened in Nicaragua, the Court still came out with a decision. MM: Under the withdrawals are effective only 1 year after they are made. Also, withdrawals are subject to the provision stating that the withdrawing State is still liable to obligations which have already attached. Q: Has there been instances where a tribunal ruled it had no jurisdiction under UNCLOS?

MM: There are 6-7 cases. But these can't be associated to each other because of the difference in factual circumstances. Q (Taiwanese reporter): In your presentation, you did not mention the largest island occupied by Taiwan. Is it included in the case? OSG: Not part of the case. It is up to China to clear its position on the island with Taiwan.