Polish judge picked for PH-China arbitration

Posted at 03/26/2013 7:35 AM

MANILA, Philippines - The president of the United Nations-backed International Tribunal on the Law of the Sea (ITLOS) appointed last week the second member of the arbitration panel that will hear the Philippines’ case challenging the validity of China’s nine-dash line claim to almost the entire South China Sea.

The Department of Foreign Affairs (DFA) confirmed yesterday that ITLOS president Shunji Yanai has appointed Polish judge Stanislaw Pawlak to be China’s arbiter and second member of the tribunal.

Pawlak has been a member of the ITLOS since October 2005. He obtained his doctorate in law from the University of Warsaw. He was a former ambassador to the UN, a deputy-director of Poland’s Ministry of Foreign Affairs, adviser to the Polish president and a professor of international relations and public international law at the University of Warsaw.

The tribunal will be composed of five members.

Former ITLOS president Judge Rudy Wolfrum of Germany was nominated by the Philippines.

The Philippines requested Yanai’s intervention after China refused to nominate its arbiter.

Under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS), the ITLOS president will form the panel if and when a party refuses to participate in the arbitration.

Foreign Affairs spokesman Raul Hernandez said the ITLOS president would appoint the other three members of the tribunal after it receives another written request from the Philippines.

Yanai will then assign the three remaining posts in the panel in the next 30 days. Unless agreed, the last three posts should be taken over by citizens of another state other than the Philippines and China.

Once the panel has been filled, they will then hear the arguments of both parties and decide on the case’s merit.

“Arbitration proceedings will proceed upon completion of the panel members as provided by Annex VII of the UNCLOS,” Hernandez said.

The Philippines elevated to the tribunal its maritime dispute with China to challenge the validity of China’s nine-dash line claiming the South China Sea, including the West Philippine Sea, and Beijing’s unlawful activities.

Foreign Affairs Secretary Albert del Rosario said the Philippines has taken the step of bringing China before an arbitral tribunal under Article 287 and Annex VII of the 1982 UNCLOS in order to achieve a peaceful and durable solution to the dispute over the West Philippine Sea.

China maintained that only the concerned parties should settle the South China Sea disputes through direct negotiations.

The initiation of arbitration proceedings against China on the nine-dash line is an operationalization of President Aquino’s policy for a peaceful and rules-based resolution of disputes in the West Philippine Sea in accordance with international law, specifically UNCLOS.

The legal action is pursuant to the President’s constitutional mandate to pursue the national interest and defend the Philippine territory and maritime domain. It also pursues the policy of a rules-based approach based on international law.

China’s nine-dash line claim encompasses practically the entire West Philippine Sea, which the Philippines believes must be challenged in order to protect its national territory and maritime domain.

Solicitor General Francis Jardeleza is the agent or legal representative for the Philippines in the arbitral proceedings. The lead counsel of the Philippines is Paul Reichler of Foley and Hoag LLP.

The Philippines asserts that the arbitral tribunal has jurisdiction to hear and make an award based on its Notification and Statement of Claim because the dispute is about the interpretation and application by states parties of their obligations under the UNCLOS.