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The Philippines-China Arbitration: What Next?

What comes next in the Philippines’ South China Sea arbitration case?

The Philippines-China Arbitration: What Next?

Protesters in Manila hold placards during a rally regarding the disputed islands in the South China Sea.

Credit: REUTERS/Romeo Ranoco

The five-member tribunal hearing Manila’s case against Beijing’s South China Sea claims at the Permanent Court of Arbitration in The Hague held a hearing on preliminary jurisdiction and admissibility of claims from July 7 to 13. As expected, China did not participate or attend the hearings, which were closed to the public but observed by delegations from Indonesia, Japan, Malaysia, Thailand, and Vietnam. The tribunal’s decision to consider jurisdictional questions separate from the merits will likely delay a final ruling, though fears that it will push a decision back a year or more are likely overblown.

The court gave the Philippine legal team until July 23 to submit detailed written responses to the issues raised during the hearing on preliminary jurisdiction. Many of these are the same concerns that Beijing raised in its position paper published last December, which the court said it would consider as a submission in the case regardless of China’s insistence otherwise. The judges also gave China until August 17 to file any comments it might have on arguments made during the jurisdiction hearing.

In a July 13 statement, the tribunal said it would issue a ruling on preliminary jurisdiction “as soon as possible and expects to do so before the end of the year.” Paul Reichler, who heads up the Philippines’ legal team, was more specific, saying he expects a decision within 90 days. Given his considerable experience, it is safe to assume Reichler’s timeline is accurate, which means the court will likely rule on jurisdiction by late October. Beyond that point, the timeline for the case becomes a matter of debate.

Philippine Supreme Court Associate Justice Antonio Carpio has said that, presuming the tribunal finds it has jurisdiction, the judges will hold a hearing on the merits of the case in November. That timeline presumes the jurisdiction decision will come down in August or September. Carpio, who is well-versed in both maritime law and the Philippine case, then expects a final decision in the first quarter of 2016. This is an optimistic reading of the tea leaves, though not an unreasonable one. It is likely that by setting their yardsticks at 90 days and the end of 2015, respectively, Reichler and the judges were establishing the upper limits, not the median timeframe for a jurisdictional ruling.

The pacing of the case to date gives a good indicator of its likely progress moving forward. The court announced the jurisdiction hearings in April, just a month after receiving the Philippines’ over 3,000-page supplemental written submission and two months before the deadline for China to respond to it. That means there is no reason to assume a schedule for prospective hearings on merits would not be decided while the jurisdictional deliberations, and China’s opportunity to respond to the previous hearing, are still pending. So Carpio’s prediction of a November hearing is a real possibility, though whether it came from personal knowledge of the tribunal’s plans or was just an educated guess is unclear.

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The tribunal is unlikely to think China and the Philippines need much time between when it rules on jurisdiction—which it will almost certainly find it has—and moving onto the merits hearing. The Philippines submitted its original memorial, containing its evidence and arguments, almost a year and half ago in March 2014. The justices requested further information on a number of points contained therein, which led to the submission of the supplemental memorial in April. So by October, all parties will have had at least six months to consider even the most recent arguments and evidence offered. And since China has not engaged in debate over the merits, it is safe to assume that there will be no third submission needed until after the hearing. The tribunal sent China and the Philippines guidance regarding the issues to be addressed in the jurisdictional hearing on June 23—just two weeks before the hearing commenced. All of this suggests that a hearing on the merits can be expected sooner rather than later.

Once the hearing takes place (in November by Carpio’s reckoning, and likely by January based on the more conservative estimates), the timeline splits into what might be called the “fast track” and the “slow track.” Both of those tracks assume that China continues to shun participation in the case. In the first, the merits proceedings will mirror those on jurisdiction. The Philippine legal team will engage in several days of oral arguments to respond to the justice’s outstanding concerns. Then they will receive a brief window to submit further written responses, and China will be given a month or so to submit any comments it has on issues raised during the hearings. In the meantime, the justices will have entered their deliberations. The default space of time between one stage of the proceedings and the next has been three months, which is a reasonable yardstick to use here, especially since the justices will have already had at least seven months to consider the Philippines’ evidence and arguments. By that reckoning, a final decision could come down between February and April 2016.

The other likely timeframe, the “slow track,” allows for a further round of robust written submissions after the hearing on merits. This is not unreasonable, considering that the questions of merits are much more complex than those of preliminary jurisdiction. It is also likely that the tribunal will raise further questions of jurisdiction during the merits round, as the determination of certain features’ status as rocks, islands, or low-tide elevations could raise new questions about whether the case infringes on delimitation of claims. And it will likely find that it cannot rule on parts of the case, but can still consider the merits of others (For Manila, this would likely be better than a favorable ruling on all points). If yet another round of submissions is required, it is reasonable to push back the timeframe for a ruling another three months or so, to between May and July 2016.

Of course, there are no guarantees that the case could not slide even further. There is always the (slim) possibility that China will choose to engage. There is also the possibility that a third hearing could be called, though that is unlikely given China’s non-participation and the extent of arguments and evidence already presented. But given the pacing of the case to date, and the tribunal’s commitment in its own Rules of Procedure “to avoid unnecessary delay,” a ruling should still be expected by mid-2016.

Gregory Poling is a fellow with the Sumitro Chair for Southeast Asia Studies and the Pacific Partners Initiative at the Center for Strategic and International Studies.