The Philippines had asked the tribunal to find relief for over thirteen points, including asking the tribunal to require China to bring its domestic law into conformity with a multilateral treaty known as the United Nations Convention on the Law of the Sea (UNCLOS).
Both China and the Philippines are parties to UNCLOS.
In seeking the relief, contrary to practice, the Philippines assumed that the tribunal had jurisdiction to hear its complaint. The general practice is for the tribunal to establish, not the party, whether it had jurisdiction to hear the case.
A five-member arbitral tribunal will hear the Philippines' pleas. Judge Thomas Mensah of Ghana will chair the tribunal. Other members are judge Jean-Pierre Cot of France, judge Stanislaw Pawlak of Poland, judge Rudi Wolfrum of Germany and Professor Alfred Soons of the Netherlands.
Leading the Philippine team is Solicitor-General Francis H. Jardeleza. He will be assisted by Paul Reichler and Lawrence Martin of Foley Hoag, Professors Bernard Oxman, Phillip Sands and Allan Boyle.
China has not appointed an agent as it does not consider necessary to do so. It informed the Philippines in February last year and the arbitral tribunal in August that it would not participate in the proceedings and that it does not accept the arbitration initiated by the Philippines.
In June 1996, following ratification of UNCLOS, China informed the United Nations through a reservation that it would not accept any of the procedures with respect to all categories of disputes in paragraph 1(a), (b) and (c) of Article 298 of the Convention.
China also informed the UN that it "will effect, through consultations, the delimitation of the boundary of the maritime jurisdiction with the States with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability".
Three contentious points of relief sought by the Philippines are:
TO declare that China's rights to the maritime areas in the South China Sea are exclusively established under UNCLOS;
TO declare that China's maritime claims in the nine-dash-line are contrary to UNCLOS and invalid; and,
TO declare that China desist from "these unlawful activities."
Many see the weakness of the Philippines' claim that asserts China's rights are established by UNCLOS "only and exclusively", without reference to the sources of international law under Article 38 of the International Court of Justice.
UNCLOS does not deal with the issue of sovereignty. Besides, China's U-shaped line was drawn long before UNCLOS came into force.
In my view, the Philippines' claim is too broad and the relief that it has sought too vague.
No matter how the Philippines avoids the sovereignty issue in its statement, it is quite self-evident that it wants to get sovereignty and jurisdiction over insular features at sea within the U-shaped line.
By not participating in the tribunal, China has withheld consent from adjudication and arbitration on sovereignty matters.
It is an established cardinal principle in international law that a state cannot be brought before tribunal or court without its consent.
I also concur with the view of an authority on international law that says "none of the 13 points of the Relief Sought (by Philippines) either gives right to a dispute concerning the application of the Convention (i.e., UNCLOS) or can be addressed without considering matters which are or have been validly removed from the jurisdiction of the Tribunal."
The above notwithstanding, the tribunal's decision is much awaited.
From:http://www.nst.com.my/mobile/opinion/columnist/philippines-might-be-knocking-on-the-wrong-door-1.537361