A Sea of False Accusations

Beijing Review | 作者: Cao Qun | 时间: 2014-04-22 | 责编: Li Xiaoyu
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By Cao Qun


The Philippines' legal challenge over South China Sea disputes is untenable


Last year, the Philippines instituted arbitral proceedings against China over maritime disputes in the South China Sea. The case appeared to have entered a new phase when Manila submitted a 4,000-page memorial filing to the arbitral tribunal on March 30.

The latest move of the Philippines, in truth, is merely the starting point for resolving the issue of whether the tribunal has jurisdiction over the arbitration case. In accordance with Article 25 of the Rules of Procedure adopted by the arbitral tribunal, if China does not appear before the tribunal, the tribunal shall invite written arguments from the Philippines on, or pose questions regarding, specific issues which it considers have not been canvassed or have been inadequately canvassed in the pleadings submitted by the Philippines. The Philippines shall make a supplemental written submission within three months, which shall be communicated to China for comments. The latter's comments will then be submitted within three months of the communication. Therefore, whether the case will finally be accepted and heard by the tribunal is still far from certain.

In response to the move, the Chinese Foreign Ministry said China does not accept the Philippines' submission of the disputes for international arbitration. "On issues concerning disputes over sovereignty of islands and reefs and delimitation of maritime boundaries, China has all along adhered to settling disputes through direct negotiations with countries concerned," said a ministry spokesman.


Nine-dash line


Under Article 298 of the UN Convention on the Law of the Sea (UNCLOS), China declared that it does not accept compulsory procedures relating to sea boundary delimitations in 2006. But the Philippines insisted that the arbitral tribunal have jurisdiction over the claims the country has asserted in the belief that its claims do not fall within the excepted category of disputes. In these circumstances, pursuant to Article 9 of Annex VII to the UNCLOS, the arbitral tribunal must demonstrate not only that it has jurisdiction over the disputes but also that the Philippines' claims are well founded in fact and law before making its award.

Though Philippines' arbitral proceedings against China are carefully packaged, they come down to disputes concerning maritime delimitations involving the concurrent consideration of unsettled sovereignty disputes over insular land territory—issues that are not covered by the UNCLOS. The Philippines doubted the legitimacy of the "nine-dash line" claimed by China in the South China Sea, and asserted South China Sea maritime disputes should be judged by the UNCLOS. But the fact is, under the principle of "non-retroactivity of treaties" enshrined in the Vienna Convention on the Law of Treaties adopted in 1969, the UNCLOS, which came into force in 1994, cannot deny China's "U-shape line" published almost half a century ago.

Moreover, since the Chinese Government has so far not made a clear interpretation of the nine-dash line, the logic behind the Philippines' accusation that the line does not conform to the UNCLOS is questionable. Currently, there are several different interpretations over the nine-dash line within China's academic circles. The Philippine side may ask China to give an official explanation before making its comments. However, Manila chose to distort China's claim, saying China has claimed the sovereignty of the whole South China Sea and made that the precondition for negotiations.

China has reiterated it has sovereignty over the South China Sea islands and their adjacent waters, but never claimed sovereignty over all waters within the nine-dash line. For instance, in a letter to UN Secretary General Ban Ki-moon in May 2009, the Chinese Government stated that "China has indisputable sovereignty over the islands in the South China Sea and their adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof." From a legal perspective, while having sovereignty over its internal waters and territorial waters, a country can enjoy sovereign rights and jurisdiction over its exclusive economic zone (EEZ) and continental shelf. Therefore, "adjacent waters" in the letter should be interpreted as territorial waters, whereas "relevant waters as well as the seabed and subsoil thereof" refer to China's EEZ and continental shelf.


EEZ claims


The Philippines also argued that China's sovereignty claim over some low-tide elevations or submerged features such as Meiji Reef, Ximen Reef, Nanxun Reef and Zhubi Reef violates the UNCLOS, which says submerged features not above sea level at high tide are part of seabed and cannot be subject to the sovereignty of a state. However, China released its nine-dash line long before the UNCLOS entered into force. The international law community at that time distinguished seabed and subsoil from waters in the high seas. They essentially deemed that the seabed and subsoil can be occupied. For instance, the eighth edition of Oppenheim's International Law published in 1955 said that states' exploitation of seabed resources through the activities of their people had become an international practice.

In the 1940s and 1950s, especially after Washington issued the Truman Proclamations in 1945, there were many cases of countries claiming rights over seabed and subsoil in the high seas. Truman Proclamation 2667 said the U.S. Government "regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control." Truman Proclamation 2668 vowed to establish conservation zones in those areas to protect fishery resources. Therefore, it is unfair to question China's "historic title" over the submerged features within the nine-dash line that have been officially identified by China.

It is worth noting that the low-tide elevations or submerged features the Philippines mentioned are all located within the EEZs of larger islands. Thus, the Philippine accusation that China claims too many waters is groundless. In a recent article published in RSIS Commentaries titled The South China Sea Disputes: Formula for a Paradigm Shift?, scholars Robert Beckman and Clive Schofield wrote that China could limit its EEZ claim to just the 12 largest islands in Nansha Archipelago. They all have vegetation and in some cases roads and structures have been built on them. Therefore, they are "islands" entitled in principle to EEZ and continental shelf rights of their own under the UNCLOS. The two authors pointed out that while it may appear that using only the larger disputed islands to generate its EEZ claim would entail a "loss" of potential maritime areas to China, the impact would actually be minimal because the islands are grouped in close proximity to each other, allowing a broad sweep of EEZ claims. They argued that claiming only the larger islands will not limit China's maritime reach significantly, but would bring the country's claim more in line with international law.

Furthermore, the Philippines has failed to fulfill the obligation to exchange views with China on the disputes. Article 283 of the UNCLOS says that when a dispute arises between state parties concerning the interpretation or application of the convention, the parties shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. And in accordance with Article 286 of the convention, if the Philippines fails to fulfill this obligation, it has no right to subject the disputes to compulsory procedures. In fact, the Philippines knows the importance of this obligation, and often regards diplomatic consultations on sovereignty disputes involving Huangyan Island and Meiji Reef as evidence that it has fulfilled the obligation. As previously mentioned, arbitration under the convention should not address any dispute concerning sovereignty over land territory. The Philippines also states explicitly in its notification and statement that it does not "seek in this arbitration a determination of which party enjoys sovereignty over the islands claimed by both of them." It therefore has no reason whatsoever to use diplomatic consultations on sovereignty disputes as evidence of fulfilling the obligation to exchange views.

In conclusion, the Philippines' push for international arbitration against China over maritime disputes in the South China Sea is suspected of abusing the procedures of the UNCLOS. It also seeks to damage China's image by deliberately distorting the country's stance. Since the arbitration items the Philippines submitted either go against facts or international law, or involve disputes that China has excluded from arbitration procedures, the arbitral tribunal should conclude that it has no jurisdiction over the case.


 Source:  Beijing Review http://www.bjreview.com.cn/world/txt/2014-04/21/content_614465.htm