Manila all at sea over islands

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.

(China Daily 05/03/2013 page9)