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ENFORCEMENT OF THE FINAL

DECISION OF PERMANENT
COURT OF ARBITRATION (PCA)
ON THE DISPUTE OVER WEST
PHILIPPINE SEA
(in fulfillment of the requirements for the subject of Public International Law)

SUBMITTED BY:
Boquiron, Shiela Mae A.
PIL 19:30-21:30

SUBMITTED TO:
Dr. Jose Samson
Public International Law

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TABLE OF CONTENTS

CHAPTER PAGE
NO.

I. ABSTRACT ……… 3
II. INTRODUCTION ……… 4
III. BACKGROUND OF STUDY ……… 6
IV. REVIEW OF RELATED LITERATURE ……… 9
V. DISCUSSION ……… 11
VI. CONCLUSION ……… 14
VII. REFERENCES ……… 15

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CHAPTER I
ABSTRACT

Philippines unlike any other nation states within the South East Asia is

recognized as archipelagic state being composed of groups of islands. The indicium of

this set-up leads to conflict with other neighboring states in regards to the jurisdiction

over some parts of our territory to which these countries also claim their dominion

thereto. The most prevalent one is the recently resolved dispute over the West

Philippine Sea or South China Sea over which the Republic of the Philippines and The

People’s Republic of China have its separate claims therein.

This paper discusses the problems in regards with the enforcement of the

Decision rendered by the Permanent Court of Arbitration on the dispute over the West

Philippine Sea or South China Sea and its effect in the relationship between two states.

Further, in this paper, it will also be tackled the possibility of totally enforcing the subject

decision despite the overwhelming rejection of China of the jurisdiction of the

Permanent Court of Arbitration over this arbitration proceedings.

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CHAPTER II
INTRODUCTION

The never-ending dispute regarding territory between states never ceased to

exist in the modern times. Nonetheless, as compared to the past, states manage to

resolve such disputes in a peaceful manner and without any aggressive acts. One

example of such conflict is the dispute in the West Philippine Sea, specifically involving

Republic of the Philippines (Philippines for brevity) and The People’s Republic of China

(China for brevity).

These aforementioned countries are both party state to the United Nations

Convention on the Law of the Sea (UNCLOS for brevity). UNCLOS defines the rights

and responsibilities of nations in their use of the world’s oceans, establishing guidelines

for businesses, the environment, and the management of marine natural resources.

Further it also provides mechanism for settlement of disputes related issues regarding

the law of the sea.

It is a public knowledge that China has been exploiting resources within the West

Philippine Sea despite having been aware that Philippines has claim or exercising its

territorial jurisdiction therein. Previous administration of the government in the

Philippines exerted efforts of peaceful negotiations with the government of China

regarding the latter’s state acts which is detrimental to the jurisdiction of the Philippines

over the West Philippine Sea. Further, Philippines tried to convince the China to enter

into arbitration proceedings to finally settle such disputes before the Permanent Court of

Arbitration. Nonetheless, the appeal of the Philippines for the China to desist any of

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these acts was futile as well as to enter into such proceedings was publicly rejected by

the latter. In view thereto, Philippines was constrain to initiate the arbitration case

against China.

The Permanent Court of Arbitration (PCA for brevity) resolved the case in favor of

Philippines. Presently, it seems that the China despite the final ruling of the Tribunal

refuse to comply with such. Recent developments and installment of different

establishments by China were seen within the disputed area. Further, China also did not

cease on its acts of exploitation of the resources of within the area in violation of the

rights of the Philippines which has been declared by the Tribunal. Concurrently, the

present administration also became lax on exercising our state rights over the same.

Philippines indeed won the arbitration proceedings over the West Philippine Sea

and its rights to exercise territorial jurisdiction over the same has been recognized. The

big question is how could a small country like the Philippines will exercise such rights

considering that the opponent state, China is considered as one of the big player and

powerful state in realm of international relations? Further, reality speaking, despite the

existence of such conventions and organizations to which states are party, there still a

non-existing central government that will compel them to comply with such decision. In

view of the foregoing circumstances, this study seeks to explain details in relation to the

enforcement of the such International Court’s Decisions and it what manner this

decision will bind the subject party states in respect to the Conventions to which they

are member thereto.

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CHAPTER III
BACKGROUND OF THE STUDY

On January 22, 2013, Philippines initiated an arbitration proceeding against

China before the Permanent Court of Arbitration concerning the dispute in the West

Philippine Sea.

Regardless of the filing for arbitration proceedings of the Philippines, China has

maintained its position that it would not participate in the proceedings. Non-participation

in the proceedings of other party does not preclude the process of such and still China

may still be bound of such decision which the Tribunal will render pursuant to provisions

of the Convention.

On December 7, 2014, China through its Foreign Ministry published a Position

Paper in relation to the subject arbitration proceedings while remaining its stand that

issuance of the same does not constitute their participation in the proceedings. It

averred among others that the Tribunal has no jurisdiction to settle the subject dispute

considering that it concerns territorial sovereignty over the maritime of the South China

Sea. It alleged the result of this proceeding might constitute maritime boundary

delimitation of their territory which the China on its 2006 Declaration expressly made to

be excluded as a condition in acceptance of any compulsory dispute settlement.

Philippines established in this proceeding that it is no way concerns the

determination of the Party’s sovereignty over the respective islands. Philippines merely

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seeks before the tribunal to provide the following declaration on the following subject

matter, to wit: (1) Parties’ respective rights and obligations in regard to the waters,

seabed and maritime features of the South China Sea are governed by UNCLOS, and

that China’s claims based on its “nine dash line” are inconsistent with the Convention

and therefore invalid; (2) determines whether, under Article 121 of UNCLOS, certain of

the maritime features claimed by both China and the Philippines are islands, low tide

elevations or submerged banks, and whether they are capable of generating entitlement

to maritime zones greater than 12 M; and (3) enables the Philippines to exercise and

enjoy the rights within and beyond its exclusive economic zone and continental shelf

that are established in the Convention.

On July 12, 2016, the United Nations Tribunal issued its Decision generally

deciding the case in favor of the Philippines. Among others, the Permanent Court of

Arbitration resolved to strike down the historic rights claim of China specifically the

“Nine-Dash Line Theory” over the resources in waters in subject territory. The

Permanent Court of Arbitration held that this theory is incompatible with the provisions

of the Convention; hence, rights which are claim on the basis of such were already

extinguished. It further held that Spratly Islands are within the Philippines Exclusive

Economic Zone. China was also been determined to have been violated the Philippines’

sovereign rights in its Exclusive Economic Zone. Lastly, it was found out that China

deliberately committed acts in violation of their obligations in UNCLOS.

The dispute regarding the violation of the rights of the states over their territory

like the herein subject is not a new matter. Such disputes are common matter in

international realm. In the past when a similar dispute arises, states resort to war in

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order to resolve the same. Nevertheless, due to the destructive result of wars, nation

state decided to provide avenue to resolve such conflicts in a peaceful manner, hence,

the creation of United Nations and several conventions and treaties afterwards for the

maintenance of peace between states. In view thereof, states are required to settle their

dispute peacefully.

Several decisions regarding territorial disputes have already been issued by the

International Courts. State being party member to the United Nations are obliged to

comply and observed in good faith decisions rendered by International Courts pursuant

to the principle of pacta sunt servanda. Nevertheless in reality, it has been established

over time that there is a problem in regards to the enforcement of judgments issued by

International Courts. States involved usually refuse to comply with such orders due to

the absence of central government in the international community. Example of this is the

decision rendered by International Court of Justice (ICJ for brevity) in Corfu Channel

Case (United Kingdom v. Albania, 25 March 1948, ICJ. Rep. (1948)), which was only

complied by Albania after forty years. Nevertheless, around 1980’s, state parties took a

serious cognizance of non-compliance of ICJ Orders when United States to comply with

the decision of ICJ in Nicaragua case (Nicaragua v. United States, 27 June 1986, I.C.J.

14).

Be as it may, in the present time, some state still defy international judicial

decisions. As in this case, China’s refusal to comply the PCA decision despite the

pressure of international community, hence, the problem in enforcing of subject

judgment in respect of the Philippines sovereign rights.

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CHAPTER IV
REVIEW OF RELATED LITERATURE

The following literatures and studies provide a similar discussion and analysis to

this paper as well as it has a significant bearing with this paper.

Enforcement of International Judicial Decisions

In the PhD thesis entitled “Enforcement of international judicial decisions of the

International Court of Justice in public international law” by Al-Qahtani, Mutlaq Majed.

The aforementioned subject paper comprehensively discussed the problems in regards

to the enforceability of the judicial decisions rendered by the International Court of

Justice. As well as the obligations of the state parties to comply with such judgments in

view of the principle of pacta sunt servanda and good faith. In Majed’s paper, he

discussed the remedies provided to the aggrieved state party pursuant to the provisions

of UN Charter in case of non-compliance of the opponent state. He concluded that

International Organizations play an important role in enforcing the judicial decisions of

ICJ particularly the role of Security Council. Nonetheless, he interposed that politics is

one of the factors affecting the enforceability of international judicial decisions. The

process of enforcement of the judicial decisions of the ICJ especially through the

Organisation of the United Nations and in particular through the Security Council has

been generally regarded as political in character (Al- Qahtani, 2003). In can be view

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therefrom that despite the existence of the international law, treaties and conventions in

politics still comes into play. International law and international relations are closely

connected and intertwined (ibid).

Problems in enforcing decisions of International Courts

Attila Tanzi in his paper name “Problems of Enforcement of Decisions of the

International Court of Justice and the Law of the United Nations”, he also raised

problems in regards to the enforcement of international judicial decisions. He

emphasized the role of the Security Council in the implementation of the decision

rendered by the ICJ. Tanzi highlighted two issues on such enforcement, first, with

regard to the question of the relationship between the Security Council and the Court,

Second, and in particular, when assessing the voting procedure which applies when the

Council votes on a draft resolution aimed at giving effect to a judgment of the Court, a

systematic analysis.*

In conclusion, he stated a similar deduction with Al-Qahtani, which politics also

comes into play in the exercise of the discretion of the Security Council in implementing

these decisions, specifically when subject judgments involve a member of the Security

Council wherein such State may obviously be able to influence the decision making of

the council.

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CHAPTER V
DISCUSSION

It is a well-known fact that China is one of the big power in the international

community today, which is almost comparable to the United States. In comparison,

Philippines despite a growing country, is still far more comparable with China. As many

commentators in international study states, the decision rendered by PCA created an

enormous implication on the other territorial claims of China on the basis of historic title.

Despite the resolution of the arbitration proceedings in favor of the Philippines, we

cannot still claim the victory over this case. Even the same was declared as binding to

China. The real problem is the enforcement of the said ruling.

Considering that there’s no central government in the international realm, the

enforcement of any international judicial decisions really rests upon the party state of

such case. Here, China has always been publicly stating that it would not acknowledge

the ruling made by the PCA considering that initially it also questions the jurisdiction of

the UNCLOS over the subject matter. Subsequently, it can be seemingly be deduced on

the basis of the actions of Philippines and its present relationship with China, that the

former will not strongly assert its right in the implementation of the said judgments.

International Law is a tool to regulate the relations between states as well as the

conducts of the latter. One of the sources of International Law is the judicial decisions

rendered by International Courts, wherein one state may enforce his right on reliance of

such.

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In view thereto, the decisions rendered by PCA shall therefore be properly used

to further restrict and prevent the conduct of China in the West Philippine Sea,

specifically its acts in violation of the rights of the Philippines over the latter.

As discussed above, a state like Philippines can take measures in order to

properly enforce the foregoing decision. One of which is the same may resort to the aid

of UN through its Security Council. Unfortunately there are two problems in regards to

taking recourse to the Security Council. First, the inconsistent action of the Philippines

in regards to the exercising of its right to enforce said decision. Second, China is a

permanent member of the Security Council.

On the first problem, in order for the Security Council (SC for brevity) to take an

action to mandate and properly enforce decisions rendered by International Courts, the

aggrieved party itself must then initiate an action to ask for the assistance of the SC in

case of the defiance of the other party of such order. It must first go before the UN to

seek for its support. Presently, the administration of the Philippines seems lack of its

initiative to the same. Further, its action and further proclamations in regards to its good

relationship with China may also have an effect to such enforcement.

On the second problem, it has been discussed above that being a member of the

Security Council also does have an effect on the exercise of the latter on enforcing the

judgment rendered by international courts. There is a mechanism on the measures of

the SC in regards to the implementation of the international judicial decisions in case of

the refusal of party state to comply such. Wherein, members of the SC may make

recommendations and decide on such measures to be undertaken to enforce such

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decisions. Tanzid state that in enforcing decision of ICJ, the Charter provision in point

provides that the Security Council may 'make recommendations or decide upon

measures to be taken to give effect to the judgment' but does not refer to any specific

kinds of measures. Here, China is a permanent member of the Security Council, hence,

it has an overwhelming power which might influence the decision of the SC on its

actions in case that the Philippines would resort to the assistance of such council.

I would like to reiterate the statement of Al-Qahtani, International law and

international relations are closely connected and intertwined. Politics would always

come into play on the relations of state with each other. In reality, the establishment of

the Philippines of good relationship with China and its non-aggressiveness to compel

the latter to comply with the subject decisions might in the might of our government has

a good implication to our country. Philippines might be considering that in view of the

strong economic, political and military power of China, we stands no chance against the

latter despite the enormous support from the other nation states for the Philippines in

relation to the subject decision. It is a fact that states around the world were

condemning China on its refusal to comply with the decision and the latter continues act

of violating the rights of the Philippines in the subject disputed territory. Again, in reality,

there are a lot of things that we shall take into consideration in enforcing the decision of

the PCA.

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CHAPTER VI
CONCLUSION

In conclusion, if we strictly abide the principles of international law, China

following the principle of pacta sunt servanda must abide the ruling of the PCA. This is

to ensure the maintenance of peace with the international community as well as to not

to undermine the purpose of the International Courts in peacefully resolving disputes

between party states. The rejection of China in taking cognizance of the decision of

PCA over the dispute merely shows that international laws will only remain a mere scrap

of agreements and will not in any way may compel the states to act in accordance of

such.

Nonetheless, in this issue, the burden is really on the Philippines to enforce the

subject judgment. The Philippines shall take it strong stand to enforce the subject

decision and to assert our jurisdiction over the disputed territory despite the fact of

China being a super power in the international politics. Without such assertion, all of the

efforts of the previous administration will result in vain if the Philippines will be lax on

this matter.

Currently, Philippines and China are now on the process of negotiating in regard

to the joint explorations in the West Philippine Sea or South China Sea. Does this act

can be consider as a waiver of the rights of Philippines over the subject decision or is

the only last resort of the Philippines to exercise its rights over the same territory

considering the strong defiance of China to follow such decision? This can only be

answer on the further acts and pronouncement that the Philippines will make.

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CHAPTER VII
REFERENCES

Institute for Maritime and Ocean Affairs (n.d.) About the UNCLOS. Retrieved from

http://www.imoa.ph/treaties/unclos/unclos-history/

In the Matter of the South China Sea Arbitration (Philippines v. China) (2016), PCA

(Case No. 2013-19) Retrieved from

https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf

Williams, R. D. (2016) Tribunal Issues Landmark Ruling in South China Sea Arbitration

https://www.lawfareblog.com/tribunal-issues-landmark-ruling-south-china-sea-arbitration

Al-Qahtani, M.M. (2003) Enforcement of international judicialdecisions of the

International Court of Justice in public international law. Retrieved from

http://theses.gla.ac.uk/2487/1/2003Al-QahtaniPhD.pdf

Tanzi, A. (n.d.) Problems of Enforcement of Decisions of the International Court of

Justice and the Law of the United Nations. Retrieved from

http://www.ejil.org/pdfs/6/1/1311.pdf

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