Law must prevail in the South China Sea

China’s adherence to the tribunal’s final decision will show the true meaning of its peaceful rise.

By NEAL IMPERIAL
July 9, 2016 22:05
Chinese dredging vessels are purportedly seen in the waters around Fiery Cross Reef in the disputed

Chinese dredging vessels are purportedly seen in the waters around Fiery Cross Reef in the disputed Spratly Islands in the South China Sea in this still image from video taken by a P-8A Poseidon surveillance aircraft provided by the United States Navy May 21, 2015. . (photo credit: US NAVY/HANDOUT VIA REUTERS)

 
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A decision on the arbitration case filed by the Philippines against China on the South China Sea (SCS) dispute is due to be issued by the Permanent Court of Arbitration in The Hague on July 12.

While China’s foreign minister tried to discredit the Philippine’s legal move as “political provocation,” the Philippine initiative to pursue arbitration to resolve fundamental questions on China’s maritime claims must be seen in the proper light and as a major step toward international norm-building and a rules-based maritime architecture for the 21st century.

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The January 2013 proceedings initiated by the Philippines at the arbitration tribunal against China on the SCS dispute is a manifestation of its commitment to a peaceful and rules-based management and resolution of differences on the basis of international law, particularly the 1982 United Nations Convention on the Law of the Sea (UNCLOS). China’s excessive claims are based on its so-called “nine-dash line” – an arbitrary delineation of maritime borders supposedly derived from China’s “historic rights,” and lays claim to 85.7 percent of the entire South China Sea. The nine-dash line, which does not even have specific geographic coordinates, covers areas well beyond the limits set by international law and actually impinges on the rights and territories of the Philippines and neighboring countries.

Through arbitration, the Philippines seeks to obtain a ruling on the validity of China’s nine-dash line claim and clarify and protect its maritime entitlements as a coastal state in the SCS. The case filed by the Philippines is neither a territorial issue nor an issue of maritime delimitation.

As the Philippines has repeatedly stated, it has not asked the tribunal to rule on the sovereignty aspect of its dispute with China. Instead, it only seeks to clarify what are the maritime entitlements allowed in the area.

The global discourse that this case has generated encompasses not just the particulars of the Philippine case, namely the maritime entitlements and the rights of coastal states under UNCLOS. The much greater regional and global importance is a sincere attempt to promote the rule of law, self-restraint and the non-use of force or intimidation in the settlement of disputes.

By pursuing arbitration, the Philippines upholds the primacy of the rule of law in international relations. And for this, the Philippines has garnered widespread support from other countries, including the US, the EU, Japan and G7 countries, that believe that arbitration is a legitimate way to settle disputes and that freedom of overflight and navigation must be upheld in the SCS.

Economically and militarily a modest country, the Philippines has neither the inclination for aggression nor the wherewithal to “victimize” a country as large and powerful as China.

Even as China declares its commitment to “safeguard peace and stability” in the region, it has disproportionately used its might to advance its interests in the SCS through unilateral actions in recent years, including environmentally destructive island-building (in the process destroying 17 reefs), militarization in the guise of providing “public goods,” denying its neighbors the chance to exercise their legitimate rights under the UNCLOS, and threatening the freedom of navigation and overflight as well as unimpeded trade in one of the busiest trade routes in the world.

These aggressive actions raise questions about China’s true intentions and inclinations as a rising power committed to peace and stability.

Contrary to China’s claim, the Philippines, for over two decades, has engaged China bilaterally and regionally to arrive at a peaceful resolution to the dispute. In the case of Scarborough Shoal, for instance, more than 50 bilateral engagements had been held, but talks could not progress because of China’s insistence that it had “indisputable sovereignty over the entire South China Sea.” It is utterly false therefore for China to claim that the Philippines has always been averse to bilateral talks.

China’s behavior has regretfully unraveled the trust and goodwill generated by decades of dialogue and engagement, as well as confidence-building measures between the Association of Southeast Asian Nations (ASEAN) and China, which led to the Manila Declaration and later, the 2002 Declaration on the Conduct of Parties in the SCS (DOC), by far the most important political instrument between ASEAN and China on the SCS.

While regional and bilateral talks dragged on, China systematically occupied features in the SCS in violation of paragraph 5 of the DOC. These features now host Chinese military outposts.

Under these circumstances, it is truly farcical to consider China as a victim. Having exhausted bilateral and regional avenues to no avail, the Philippines was well within its rights to invoke international law and to bring fundamental questions before an arbitral tribunal under Article VII of UNCLOS.


The Philippines and the tribunal invited China to participate in the proceedings, but the latter rejected the request.

This would have been an excellent opportunity for China to clarify its claims and the nature of the nine-dash line.

In October 2015, the tribunal issued a unanimous award on jurisdiction and admissibility of the Philippine arbitration case. The fact that a body of impartial experts on maritime law has unanimously ruled to accept the case banishes all doubt on the wisdom of seeking arbitration.

The tribunal also held that China’s decision not to participate in these hearings does not deprive the tribunal of jurisdiction and that the Philippines’ decision to commence arbitration unilaterally was not an abuse of the dispute settlement procedures under UNCLOS.

The tribunal accordingly concludes that the ASEAN-China DOC does not, by virtue of Article 28 of the UNCLOS, preclude the tribunal’s jurisdiction. This position preserves the right of ASEAN members states and China, as state parties to UNCLOS, to pursue dispute settlement mechanisms provided in the UNCLOS. It is therefore not true, as China claims, that the arbitration case filed by the Philippines violates the DOC.

We should not be distracted from the core issue that it is China’s unilateral and aggressive actions on the ground to change the status quo and impose its nine-dash line claim on other countries that violate the DOC and threaten the peace and stability in the region.

The Philippines’ arbitration case is consistent with the principles established in the DOC, which does not limit the parties from seeking other dispute-settlement mechanism including arbitration, when dialogues and consultations have become futile, ineffective or impractical.

Arbitration is widely recognized as a peaceful means of resolving disputes.

The tribunal’s decision is legally binding on all parties and will provide a sound basis for moving forward to a new beginning of a rules-based regime in the South China Sea.

The Philippines will fully respect the tribunal’s decision as an affirmation of UNCLOS and hopes that all members of the international community and parties to UNCLOS will do the same.

China’s adherence to the tribunal’s final decision will show the true meaning of its peaceful rise. It would show to the world that China, with its growing stature, is a responsible member of the global community of nations that plays by the rules it has helped establish.

The author is the Philippine ambassador to Israel

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