PH arbitration case vs. China affects coastal and land-locked countries

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Jaime S. Bautista

Jaime S. Bautista

The cataclysm wrought by the tsunami-like waves of Super Typhoon Haiyan has touched people from all over the world.  Nature’s fury has once again humanized mankind.  The warships of nations who fought in the decisive Battle of Leyte are now converging at this island, to cooperate and provide humanitarian relief.

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In times of great human suffering, it is not timely to write about discord, but to reflect on goodwill and understanding.  In this context, I write about the arbitration requested by the Philippines for the peaceful resolution of its dispute with China in the West Philippine Sea.

The Philippines brought this request for arbitration in accordance with Chapter VI of the UN Charter entitled “Pacific Settlement of Disputes.”  Article 33, Paragraph 1 thereof provides: “The Parties to any dispute, the continuation of which is likely to endanger the maintenance of international peace and security, shall first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

The Philippines has chosen to bring this arbitration before the International Tribunal of the Law of the Sea (Itlos), in accordance with the provisions of Part XV of the UN Convention of the Law of the Sea (Unclos) entitled: “Settlement of Disputes” since the dispute has been the subject of good faith negotiations between the Philippines and China since 1995.

If the Philippines wins the case, China should be expected to comply with the arbitral decision of Itlos established under Unclos.  China has treaty obligations as a Party to Unclos and is not only a member of the United Nations but also a Permanent Member of the UN Security Council.  The Philippines does not stand alone on the issues before Itlos and expects international law to be respected.

The arbitration case raises issues affecting all the countries of the world, both coastal and land-locked.

According to the Philippines’ Notification for Arbitration, China claims “sovereignty” or “sovereign rights” over some 1.94 million square kilometers, or 70 percent of the West Philippine Sea’s waters and underlying seabed within its so-called nine dash line.

Unless China retreats from this position, China would be claiming “sovereignty” or “sovereign rights” over part of the high seas as well as part of the Area defined in Unclos as the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction.

The Area and its resources, according to Articles 136, 137 and 140 of Unclos, are the common heritage of mankind and cannot be claimed or appropriated by any State but are vested in mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States.

China’s “nine dash line” also raises the issue of freedom of navigation in the high seas, which affects all maritime and trading nations, including the other Permanent Members of the UN Security Council.

Furthermore, the issues raised by the Philippines over its sovereign rights in its Exclusive Economic Zone and over the submerged features in its continental shelf are the same issues that Brunei, Malaysia and Vietnam have with China and, therefore, would have an impact on China’s relations with Asean.

All states expect international law to be respected, especially by those aspiring to be a leader of the international community.  There are great costs to those states that violate treaty obligations of a fundamental nature entered into by the great majority of States.

jaime@jaimesbautista.com

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2 Comments

  1. The legal move of PH will benefit the other ASEAN countries in their respective claim. Any idea on how long would it take for this legal resolution though.

  2. About “PH arbitration case vs. China affects coastal and land-locked countries” by Ambassador Jaime Bautista in your November 22, 2013 issue: True, all the the just and fair arguments and criteria should make decent men and women take the side of the Philippines against China for being an aggressor and land- and sea-grabber. The reality in this world, however, is that weak and poorly organized and badly governed countries never win against rich and powerful states like China. Although millions of China’s people are just as poor and powerless as the 60 percent of the Filipinos who are needy and even destitute, China is governed by a communist party (which is no longer strictly following the Maoist-Leninist doctrine) that succeeds in keeping theirs a strong and effective state solid institutions–even if we don’t agree with the Chinese leaders social morality and human rights abuses.
    In the end all the rich and powerful countries will side with rich and powerful China if it is between it and the Philippines. But the US, Japan and most European countries will work to support us if we become a well-governed, a relatively strong state (like Singapore) and can be a useful strategic ally to them.