Manila barking up the wrong tree

The Philippines recently submitted a memorandum to the Permanent Court of Arbitration laying claim to China's Meiji Reef and Huangyan Island (or Mischief Reef and Scarborough Shoal as the Philippines calls them) and several other islands that are either submerged features or "rocks" in the South China Sea as defined under Article 121 of the 1982 UN Convention on the Law of the Sea. But that does not mean the Philippines has fulfilled the requirements for initiating an arbitration, nor does it mean the arbitral tribunal has jurisdiction to hear the case.

The Philippines first sent a notification and statement of claim to China in January 2013 to initiate arbitral proceedings and seek a "peaceful and durable resolution to the dispute" under the UN Convention.

According to the provisions of the Convention, state parties shall settle any dispute between them by peaceful means according to the UN Charter, and when a dispute arises, the parties should proceed expeditiously to exchange views on a settlement through negotiations or other peaceful means.

China and the Philippines have been exchanging views on the dispute since the first bilateral consultation on South China Sea issues in August 1995. Over the years, the two sides have agreed to cooperate "step by step" and resolve bilateral disputes through negotiations.

Manila, however, failed to suitably respond to Beijing's suggestions in March 2010 and January 2012 to establish a Sino-Philippine regular consultation mechanism on maritime issues and resume the bilateral mechanism on trust-building measures. Despite that, Manila has declared in the notification and statement of claim that it fully and in good faith complied with the Convention, and that "despite many bilateral meetings and exchanges of diplomatic correspondence over more than 17 years", "no settlements have been reached on any of these disputed matters".

The so-called 17 years of "fruitless" exchange of views, in fact, has basically remained at the consultation level that has helped improve dialogue but not led to the negotiation stage where the two parties could come up with concrete proposals for a settlement. Therefore, on no ground can Manila jump to the conclusion that "all possibilities of a negotiated settlement have been explored and exhausted".

Article 281 of the Convention says that if state parties have agreed to seek settlement of a dispute through peaceful means of their own choice, the procedures provided for in Part XV of the Convention on the settlement of disputes apply only where no settlement has been reached through such means and the agreement between the parties does not exclude any further procedure.

Both China and the Philippines are parties to the 2002 Declaration on the Conduct of Parties in the South China Sea, based on which the two sides should make efforts to resolve their territorial and jurisdictional disputes through peaceful means (friendly consultations and negotiations) in accordance with universally recognized principles of international law, including the Convention.

Also, the two sides should continue their consultations and dialogues on relevant issues through modalities to be agreed by them, including regular consultations on the observance of the Declaration. Seen in this light, the Philippines has violated the Declaration by moving the Permanent Court of Arbitration without seeking the consent of China.

Since Manila filed an arbitration case against Beijing without having fulfilled the mandatory requirements, the case falls beyond the jurisdiction of the arbitral tribunal. In the notification and statement of claim, the Philippines has listed 13 points, which can be translated into three general requests for the tribunal - to give a ruling on the maritime rights of China and the Philippines in the South China Sea that are established by the provisions of the Convention on territorial sea, contiguous zone, exclusive economic zone and continental shelf; to rule that China's nine-dash line violates the Convention and is invalid; and to adjudicate that China has unlawfully claimed maritime entitlements to the Meiji Reef, Huangyan Island and other islands in the South China Sea.

To determine the maritime rights of China and the Philippines in the South China Sea, it is necessary to first determine the territorial sovereignty over the disputed islands, in accordance with the basic principle of the law of the sea - that the land dominates the sea, meaning it is the territorial sovereignty of a coastal state that gives shape to its sovereign rights and jurisdiction over its territorial sea, exclusive economic zone and continental shelf.

Therefore, the core point of the dispute Manila has raised is actually the sovereignty over the disputed islands and demarcation of maritime rights, neither of which falls within the limited jurisdiction of the tribunal. This is because in August 2006, China submitted to the UN a formal statement in accordance with Article 298 of the Convention, clarifying that it does not accept any of the compulsory procedures provided for in Part XV of the Convention with respect to any dispute on territory, maritime delimitation and military activities referred to in Article 298.

Also, according to the same article, any dispute that necessarily involves the concurrent consideration of any unsettled dispute on sovereignty or other rights over continental or insular land territory should not be submitted to conciliation procedure under Annex V of the Convention.

International arbitration cannot resolve the territorial disputes in the South China Sea, including that between Beijing and Manila. They should be resolved through bilateral political and diplomatic channels. The Philippines has simply taken a wrong path in trying to push the arbitration forward.

The author is the director of the Center for China Marine Strategy Studies, Shanghai Academy of Social Sciences.

(China Daily USA 04/15/2014 page12)