Manila has no locus standi in sea case

A Foreign Ministry document on the Philippines' move to take the South China Sea dispute to an international tribunal for arbitration reiterates that China will not accept, let alone participate, in such kind of adjudication. The document, issued on Sunday, explains why the tribunal has no jurisdiction over the dispute.

Aside from the greater issues Manila's arbitration request involves, the "mandatory arbitration" it is seeking before fulfilling some prior procedural obligations is also an important reason why the tribunal should not take up the case. According to Article 288 of the United Nations Convention on the Law of the Sea, whether or not a court or tribunal has jurisdiction over any dispute between parties depends on whether the dispute is submitted in accordance with part XV of the Convention. And Article 286 also says that any dispute on the interpretation or application of the Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.

A study of the relevant clauses of the document shows Manila has not fulfilled the obligations of "settling the dispute by peaceful means" and "exchanging views with other parties to the dispute" before taking the dispute to the tribunal.

According to Article 279 of the Convention and Clause 33 of the UN Charter, peaceful means to resolve the dispute include talks, investigations, mediation, arbitration, judicial settlement and other peaceful means agreed to by the disputing parties. But despite the inclusion of "arbitration", the Article excludes "mandatory arbitration", which Manila seeks.

Article 279 states only sketchily that parties should settle a dispute on the interpretation and/or application of the Convention through peaceful means in accordance with relevant international documents, and Article 298 and other articles present supplementary statements on matters such as how to choose peaceful means. For example, Articles 280 and 281 encourage relevant parties to resolve their disputes peacefully through the negotiation means they agree to.