Manila all at sea over islands
Updated: 2013-05-03 07:10
By Jin Yongming (China Daily)
On April 26, the Chinese Foreign Ministry accused the Philippines of trying to legalize its occupation of disputed islands in the South China Sea. Foreign Ministry spokeswoman Hua Chunying said China would never agree to international arbitration on the disputed islands, which the Philippines has been seeking.
Earlier this year, the Philippine government called for international arbitration in the South China Sea dispute and notified China of its move. And in late March, the president of the International Tribunal for the Law of the Sea even appointed an arbiter for arbitral proceedings after Beijing "failed to designate its representative within the 60-day deadline".
The South China Sea dispute centers mainly on two aspects: conflicting sovereignty claims over Nansha Islands and maritime delimitation. In both cases, the disputing countries should resolve the issue through peaceful means. By initiating arbitration on the validity of China's claims, the Philippines has actually exposed its lack of legal knowledge and violated the consensus reached on the Declaration on the Conduct of Parties in the South China Sea.
The Philippines has called for arbitration in the dispute by invoking the United Nations Convention on the Law of the Sea, but this does not justify its move. According to Article 286 of the UNCLOS, any dispute on the interpretation or application of the convention, in which no settlement has been reached through negotiation or other peaceful means, should be submitted by a party to the dispute to a court or tribunal having jurisdiction over the matter.
Therefore, a party to a dispute can invoke the article on the premise that no negotiated settlement has been reached. But by submitting the dispute to the arbitral tribunal that has not yet been fully established, Manila has unilaterally terminated the negotiation procedure and thus should be responsible for the consequences that follow.
Manila's unilateral move has also violated the consensus reached on the Declaration on the Conduct of Parties in the South China Sea with Beijing. According to Article 7 of the declaration, "the parties concerned should stand ready to continue their consultations and dialogues concerning relevant issues, through modalities to be agreed by them". Obviously, taking the dispute to the UN is not a modality agreed by the two sides. Since the Philippines has violated the consensus, parties in the South China Sea should henceforth prevent it from participating in the process to develop legally binding documents.
Moreover, the Philippines took the dispute to the UN tribunal to challenge the validity of China's nine-dotted line (demarcation line of China's claim in the South China Sea) to justify Manila's sovereignty claims and maritime interests in the resource-rich waters. By doing so, the Philippines has rested its hope on a wrong party because the arbitral tribunal has no jurisdiction over the dispute.
Article 286 of the UNCLOS stipulates that a dispute submitted to a court or tribunal has to be concerned with the interpretation or application of the convention. However, the legitimacy of China's nine-dotted line is not determined by the convention. Instead, it is based on inter-temporal law, which means a juridical fact must be appreciated in the light of the law contemporary with it. China's nine-dotted line was established long before the UNCLOS took effect and thus the UN tribunal cannot arbitrate its legitimacy.
The tribunal has no jurisdiction over the territorial dispute over the Nansha Islands either. According to Article 288 of the UNCLOS, a court or tribunal shall have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of the Convention. In other words, the tribunal will have no jurisdiction over territorial disputes which are not matters concerning the interpretation or application of the UNCLOS.
In fact, China submitted a formal statement to the UN in 2006, clarifying that it does not accept any of the procedures provided in Section 2 of Part XV of the convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) (c) of Article 298 of the convention. In this context, it means the tribunal will have no jurisdiction over maritime delimitations either.
The Philippines has committed a mistake by initiating UNCLOS arbitration proceedings against China. Despite China's consistent rejection of international arbitration, the UN has set up an arbitration panel, which, however, will have no jurisdiction over the dispute.
To settle the South China Sea issue, the disputing parties should resort to the general international law instead of the UNCLOS. After all, the purpose of establishing the convention, with due regard for the sovereignty of all states, is to establish a legal order for the seas and oceans, but matters not regulated by the convention should be governed by the rules and principles of general international law.
Peaceful settlement, especially through political means, remains the most effective and feasible resolution to the South China Sea dispute. The Philippines must show sincerity and return to the normal track of negotiation to safeguard regional peace and stability.
The author is a scholar of law at the Shanghai Academy of Social Sciences.