Manila makes misguided move

For others, for example, to request the Arbitral Tribunal to declare "that China's maritime claims in the South China Sea based on its so-called 'nine dash line' are contrary to UNCLOS and invalid" is obviously a question covered by "a declaration in force".

China's maritime claims, conflicting with the Philippines claims, concern essentially the question of maritime delimitation, which undoubtedly are "disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations" under Article 298 of UNCLOS. China has an indisputable right to refuse the jurisdiction of the Arbitral Tribunal based on the provisions of UNCLOS and the declaration it has made under Article 298.

The Philippines' request to declare the status of some of the maritime features is irrelevant for the purpose of imposing the jurisdiction of the Arbitral Tribunal, for these questions can only be decided after the jurisdiction of the tribunal has been justified.

For the reasons given above, the Arbitral Tribunal should find that it has no jurisdiction to deal with the Philippines' case.

Nevertheless, it is not unlawful for the Philippines to invoke Article 287(3) of UNCLOS to raise its case. But the Philippines government has failed to fulfill in good faith its international obligations under Article 2(3) and Article 33 of the UN Charter.

As Estelito P. Mendoza, a well-known Philippine legal expert, has highlighted, the present Philippines' administration did not take any initiative "to settle the problem amicably among the countries with conflicting claims to the area, principally with China". Estelito has said that all of Philippines' efforts, including the filing of petition for arbitration, "have moved us away from the possibility of an amicable settlement of the problem. I would characterize these efforts as needlessly provocative, thus exacerbating the problem." (Philippines Daily Inquirer, May 21, 2013.)

Under general international law, while China is obliged to settle its disputes with other countries through peaceful means, it is not obliged to accept the jurisdiction of any arbitral tribunal to help solve its territorial and maritime problems.

Moreover, according to UNCLOS, China has declared its unwillingness to accept the compulsory process for these problems. Hence, China has the legal right to refuse the jurisdiction of the Arbitral Tribunal. If the tribunal justifies its jurisdiction over the Philippines case, it will seriously violate the provisions of UNCLOS and China's sovereignty. The consequences of this violation will be huge, so the arbitrators should exercise their judicial function wisely.

The author is an associate professor both of International Law and Southeast Asian History at the School of Asia Pacific Studies, Sun Yat-sen University, Guangdong province.

(China Daily 09/07/2013 page5)