Wrong Ipc1998.

The PCA Tribunal DID qualify as an UNCLOS Annex VII arbitral tribunal because it DID comply with all the compulsory procedures necessary to constitute it as an UNCLOS Annex VII arbitral tribunal.

It is your interpretation of UNCLOS Annex VII Article 3(e) that does noes not qualify as being correct.

China was given plenty of opportunity to participate in the proceedings even before it started, yet Beijing arrogantly refused. By refusing to participate in the proceedings, China forfeited itself the opportunity to help appoint the necessary arbiters to the PCA Tribunal as well as the opportunities to be consulted regarding the matter. This is why the President of the International Tribunal for the Law of the Sea had to make the necessary appointments, allowing the proceedings to continue as a valid UNCLOS Annex VII case.

Regardless of how important China thinks it is, it’s non-participation did not make the PCA Tribunal’s proceedings any less valid nor did it make the PCA Tribunal’s 12 July ruling any less binding.

In fact UNCLOS Annex VII Article 9 is quite explicit: “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”

And as per UNCLOS Annex VII Article 11: “The award shall be final and without appeal”

Absolutely none of the so-called reasons you gave substantiate your allegations that the PCA Tribunal failed to qualify as an UNCLOS Annex VII arbitral tribunal.

Article 3
Constitution of arbitral tribunal

“(e) Unless the parties agree that any appointment under subparagraphs (c) and (d) be made by a person or a third State chosen by the parties, the President of the International Tribunal for the Law of the Sea shall make the necessary appointments. If the President is unable to act under this subparagraph or is a national of one of the parties to the dispute, the appointment shall be made by the next senior member of the International Tribunal for the Law of the Sea who is available and is not a national of one of the parties. The appointments referred to in this subparagraph shall be made from the list referred to in article 2 of this Annex within a period of 30 days of the receipt of the request and IN CONSULTATION WITH THE PARTIES. The members so appointed shall be of different nationalities and may not be in the service of, ordinarily resident in the territory of, or nationals of, any of the parties to the dispute.”

The words “arbitral tribunal” or “tribunal” referred in Articles 5 and 9 of Annex VII of UNCLOS and Article 288(4) of UNCLOS obviously does not mean any tribunal. It has to be a tribunal PROPERLY constituted under Article 3(b), (c), (d) and (e) of Annex VII of UNCLOS (an UNCLOS Annex VII arbitral tribunal).

The Philippines’ arbitral tribunal cannot invoke any power or authority under these Articles or any other Article under UNCLOS unless it is an UNCLOS Annex VII arbitral tribunal as defined above. For the reason as pointed out above, the Philippines’ arbitral tribunal has failed to be constituted as an UNCLOS Annex VII arbitral tribunal.