Comment On The Jurisdiction Of The Arbitration Case In The South China Sea And To What Extent Is The Acceptance Of The Arbitration In Philippines Legal.

The Jurisdiction of the arbitration case in the South China Sea

In the west of the Pacific Ocean lies The South China Sea which is semi-enclosed. It is widely known by rich fishing grounds it has. Additionally, it is a vital shipping lane where majority of international trade finds its way in. It happens that it lies south of china as well as the Hainan and Taiwan islands holding renowned geographical features together with considerable oil and gas resources. As a result, dispute and claims rose among five states over the area. China however, claims that historically the sea of china as well as every highland within not beyond twelve mile territorial sea belongs to them.

The complex geographic nature of the South Sea has made it almost impractical for the implicated conflicting counties to get what they claim for. There are many fabricated claims that have been made thus making it a tough procedure that requires a tough decision making which is as per now is almost impossible to execute. Subsequently, lacking no other peaceful way to solve the problem, The South East Asian Nations and China came into conclusion to follow an agreement of Declaration on Code of Conduct in respect to Association of South East Asian Nations (ASEAN). The parties involved agreed to resolve their jurisdiction as well as territorial disputes in a peaceful way that included negotiations together with friendly consultations by the sovereign states entitled.

According to Philippines, the disputes that exist between them and china can only be governed conventionally. As a result, Philippines sought a declaratory honor on the fact that china claims the right to own of the South China Sea as illustrated in the nine-dash line map (JENNER, 2016, P51-73). Secondly, the Philippines wanted to know why China violated the Philippines sovereign rights together with the rights by unlawfully by carrying out constructions and fishing activities. Following that, the Arbitral Tribunal that is found Under Annex VII of UNCLOS went though the claims and decided to act upon them (BARRETT, 2016).

China rejected the alternative to arbitration as Philippines wanted and put themselves in a position of neither declining nor participating in the proceedings. Due to the fact that the tribunal cannot continue with its proceeding with the Jurisdiction in absence of its consent, everything becomes unresolved.

The tribunal considered the lawfulness of Chinese action in the southern sea and stated them accordingly. First China was found guilty of violating Philippines sovereign right within its economical zone by directly and indirectly interfering with the petroleum exploration and the fishing activities, failure to curb their fishermen from conducting fishing within the Philippines zone and finally, making constructions beyond (Chinese) their territorial boundaries.

 Due to Chinese large scale land reclamation as well as construction of artificial islands, the tribunal accused China of doing harm to the marine environment and therefore has violated the obligations to preserve, and protect the ecosystems that are originally depleting. It was pointed out that the Chinese government was aware of the illegal fishermen activities that included fishing of endangered species eg. Coral, turtles in large scale without warning or asking them to stop (TALMON, 2014 P73).

 Finally, the tribunal had to consider whether Chinas actions were lawful or not. However, the commencement of Arbitration had provoked the dispute between the involved parties which was very hard to make the decision since all the decisions made should adhere to initial agreement. Additionally the disputes were to be solved in a peaceful manner that was not observed during the ruling. Nevertheless, the tribunal lacked jurisdiction to consider the implications facing Chinese Naval as well as Philippines marines in the dispute involved and finally was withdrawn from mandatory settlements. Contrary to the conclusion, the tribunal stated that the Chinese’s constructions and interference with marine environment that was termed as harmful to the ecosystems was not attuned to the obligations given by a state during the dispute resolution Process. Therefore up to this point it was pointed out that china had imposed so much harm to the ecosystems vial marine life destruction but had build a very big artificial island that could boost, facilitate and help the economy growth within the countries that are involved in the dispute.

 Philippines could not come to agreement about this issue because they claim that there was nothing to benefit from it because China had already covered the natural evidence on natural feature that existed. Due to this, the Philippines are not able to reclaim their territorial water boundaries according. The Chinese Foreign ministry has exhaustively made everything in power to make sure that the highlands belong to them as it is indicated in nine-dotted line map. It has made the arbitration case clear and has agreed to neither accept nor agree nor participate in the proceedings. On April 2014, Mr. Sun Xiangyang, addressed the media by telling them that the stand and the position China is taking towards and in response to Philippines allegations. He said that China had agreed solving the disputes through, bilateral negotiations only and refusal to accept the arbitration is a sign of obedience and adherence to the international law. He also added that arbitration does not meet the terms and conditions of upholding friendship between China and Philippines (SHICUN, 2016, P35)

Extent of acceptance of the arbitration in Philippines law

Arbitration is one of the methods of dispute resolution that is recognized as well as accepted in the Philippines. This is as a result of historical believes that arbitration was a common ancient practice as was stated by Philippine Supreme Court back in 1921. Although early Jurisprudence did not accept the arbitration following the declaration and recognition earlier stated, it still found a way in. Arbitration as a way of dispute resolution was discouraged as some courts invalidated arbitration clauses on the only platforms that the sections cast out the judiciary together with its command.

The acceptance of arbitration did not come easily or at a glance. The arbitration concurrences were still unpracticed and intact until the point in time when responsive rulings found their way in. Therefore, the arbitration agreements stated crystallizing in a way that they were logically absorbed and practiced. In 1953, the level of arbitration practice rose competitive thus forcing a regulatory law which was later termed as Arbitration law or Republic Act No.876 was introduced in the same year. According to Philippine Congress, it was suitable for the law to be enacted regarding the arbitration to serve the nation right.

Fifty years later after the law of arbitration was enacted, the Philippines government introduced the Alternative Dispute Resolution Act of 2004. This was made as a way to make the arbitration an effective methodology towards the disagreement resolution that was explicitly for the international arbitration. By this time the law was fully proficient and accepted. Later, there was enactment of republic Act No.9285, where the dispute resolutions that crossed the international boundaries were first agreed by the government before they happened. Incases of international disputes, the Philippines entities together with the government are first entitled to agree whether to dispute settlement to be done via arbitration means in the involved foreign country under the foreign arbitral institutions (LIU, 2015, P23).

The law accepted the practice of arbitration today as a form of dispute resolutions. The practice of arbitration is institutionalized, ad hoc or specialized. Institutionalized arbitration is practiced across bodies such as trade associations, courts arbitration centers amongst others. They always offer the procedure to be followed without necessarily participating actively in the dispute resolution rather than providing the explicit rules that can administer the proceedings involved. 

The Philippine law grants any party that is involved in the dispute, the mandate to select arbitrators as well as to choosing the arbitration institutions of their choice that also include choosing the set of rules that will govern them. This is what is referred to as the ‘ad hoc’ Arbitration. In this type of arbitration, Consent is the main requirement for the arbitration. As long as the parties involved conduct it in a lawful manner, upholding morals and good customs, therefore, they can conduct arbitration in any way they want.

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