Manila's move cannot resolve dispute

Meanwhile, international laws define a dispute as "a disagreement on a point of law or fact, a conflict of legal views or of interests" between two parties. In May 2009, Malaysia and Vietnam jointly submitted to the Commission on the Limits of the Continental Shelf a notification of the two countries' continental shelf claims in the South China Sea, and Vietnam also unilaterally made another submission. In response, China submitted its map of the nine-dash line attached to two note verbales to the UN to refute the two countries' extended continental shelf claims. In this context, even if China and the surrounding countries get into a dispute over the nine-dash line, Manila will not be a party to the dispute, and its request for arbitration over the validity of the nine-dash line should be dismissed.

In fact, Manila should not have taken China to international arbitration over the nine-dash line simply because it insists that China's nine-dash line claims violate the Convention and infringes upon its interests. Instead it should exchange views with China to settle the dispute by negotiation or other peaceful means in accordance with Article 283 of the Convention. According to Article 286, only when no settlement has been reached after the exchange of views can the dispute be submitted at the request of any party to the tribunal having jurisdiction.

As for the second argument, it is noteworthy that China asserts territorial sovereignty over the Nansha Islands in the South China Sea, among which Taiping Island is the largest. Based on Article 121 of the Convention on the regime of islands, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of the Taiping Island should be determined in accordance with the provisions of the Convention applicable to other land territory. Regarding the four submerged features named by Manila, their respective distance from the Taiping Island is no more than 150 kilometers, and with reasonable room for error in location and distance taken into account, these features should be on the continental shelf of Taiping Island, although China is yet to publish the baseline for the Nansha Islands. Again, since the point of dispute named by the Philippines over China's occupation of and activities on the submerged features has much to do with the delimitation of continental shelf, China's refusal to accept jurisdiction is on a legal basis.

With respect to the two other arguments, they are made, based on unilateral maritime demarcation on the part of Manila. China has never questioned the Philippines' status as an archipelagic state, nor has it ever denied that the country is entitled under the Convention to a territorial sea and an exclusive economic zone and a continental shelf measured from its archipelagic baselines. However, entitlement to such maritime interests does not mean the Philippines can, based on its unilateral claims, accuse China of conducting unlawful activities in the area. By doing so, Manila comes under suspicion of abusing its rights under Article 300 and violating the spirit of the Convention.

Simply put, the points of dispute listed by Manila are matters either outside the jurisdiction of the arbitral tribunal or closely related to maritime demarcation, on which China can legally reject any compulsory procedure. Therefore, what the tribunal should decide is that it has no jurisdiction on all points. It is time for Manila to act responsibly and practically and return to the right track of settling the dispute with China through dialogue and consultation.

The author is an associate professor of international law at Southwest University of Political Science and Law.