China’s snub of the Philippine arbitral claim on the West Philippine Sea (South China Sea) and its slew of building projects on disputed reefs in the area are “a serious and belligerent violation of” the UN Convention on the Law of the Sea (Unclos), of which it is a member, according to University of the Philippines professor Harry Roque Jr.
Speaking at the 5th Annual Meeting of the Japan Society of International Law at the Chuo University Law School on Sunday, Roque said China’s refusal to participate in the arbitration and its unilateral acts in building artificial islands in disputed areas in the West Philippine Sea constitute a “serious breach of the Unclos since as a party to the convention, China agreed to refer all matters involving interpretation and application of the Unclos to the compulsory and binding dispute settlement procedure of the convention.”
Roque, also the Director of the UP Law Center’s Institute of International Legal Studies, said the international community took a very long time to agree on the provisions of Unclos because all countries of the world wanted the convention to be the “Constitution for the seas.”
“By prohibiting reservations and by adopting all provisions on the basis of consensus, it was the intention of the world community to do away with the use of force and unilateral acts in the resolution of all disputes arising from maritime territory,” he noted.
Debunking the view expressed recently by Xue Hanquin, a judge at the International Court of Justice that states that made declarations when they ratified the Unclos, China included, are deemed to have opted out of the dispute settlement procedure of the convention, Roque said China’s subsequent reservations only as to specific subject matters from the jurisdiction of the dispute settlement procedures prove that China agreed to be bound by the procedure.
“This means that China is under a very clear obligation to participate in the proceedings, if only to dispute the jurisdiction of the tribunal,” he noted.
More worrisome, according to him, is China’s recent resort to the use of force in bolstering its claim to the disputed territories.
Earlier reports said China has been building artificial islands on Johnson South Reef and expanding its artificial island on Fiery Cross reef, and deploying its naval forces to ward off any opposition.
“These constructions are happening in the face of China’s snub of the arbitral proceedings which precisely impugns China’s legal rights to do so. Clearly, China’s conduct is not only illegal but is also contemptuous of the proceedings,” Roque said.
The Philippines filed a case at the International Tribunal on the Law of the Sea to contest China’s nine-dash-line basis in claiming the entire West Philippine Sea.
Roque belied China’s claim that the waters within the nine-dash lines are generated by land territory and hence, the controversy cannot be resolved under the Unclos. “Clearly, the three specific prayers of the Philippines involve interpretation and application of specific provisions to Unclos relating to internal waters, territorial sea, exclusive economic zones, islands and low tide elevations. While the Spratlys dispute without a doubt also involves land territory, these are not the subjects of the Philippines claim,” he said.
The Chinese academic in the conference, Prof. Zhang Xinjun of Tsinghua University, characterized the Philippine arbitral claim as a “mixed claim” because it involves both claims to sovereignty arising from land territory and maritime territory. This, he explained, is why the Unclos arbitral tribunal lacks jurisdiction over the Philippine claim. Zhang likened the Philippine case to that initiated by Mauritius against the United Kingdom. In this case, while it is also pending, the UK has argued that the dispute settlement proceedings of Unclos should not apply because the disputed maritime territory is generated by land territory.
Japanese Prof. Niishimoto Kentaro of Tohoku University supported Manila’s position on the nine-dash-line, saying the Philippines was not engaged in maritime delimitation, but in an action for a declaration of rights, which is an issue of interpretation and application of the Unclos. He characterized the Philippines position as “very strong.”
Meanwhile, the Philippine Air Force (PAF) intensified its air surveillance and reconnaissance operations in the West Philippine Sea amid China’s heightened activities in the area.
“At present we are concentrating in the area of Bajo de Masinloc (also known as Panatag Shoal) and the Ayungin Shoal because these are the areas of which we have the latest pictures of activities being conducted by other countries,” Col. Florante Falsis, deputy assistant chief of staff, said on Wednesday.
Falsis added that Chinese ships come and go in the area but there were instances when there were 10 to 12 of them at any given time.
Air Force commanding general Lt. Gen. Jeffrey Delgado said despite his command’s meager resources, “we are prepared for any contingency that the government will ask us to do as far as territorial defense is concerned.”
“We have been there everyday. With our resources, we are conducting almost everyday patrol at the West Philippine Sea,” he added.
But Delgado noted that the Air Force is avoiding confrontation through adherence to the rule of law, in line with efforts of the government to settle the dispute in the international courts.
PNA and William B. Depasupil