Philippines: China Communist Law could not supersede United Nations’ UNCLOS

Reported in philSTAR, "House resolution supports Philippines' legal move vs. China"

The House of Representatives on Wednesday unanimously adopted House Resolution 3004 principally authored by Speaker Feliciano Belmonte Jr., which supports the arbitration case filed by the Philippines against China based on Article 287 and Annex VII of the United Nations Convention on the Law of the Seas.

The resolution likewise called on the entire nation to unite to protect the sovereign rights and jurisdiction of the Philippines in the West Philippine Sea.

The resolution co-authored by Majority Leader Neptali Gonzales II of Mandaluyong City and Minority Leader Danilo Suarez of Quezon cited that in order to protect its sovereign rights and jurisdiction over its maritime entitlements in the West Philippine Sea, the Philippines has no other recourse but to institute compulsory arbitration proceedings against China under Annex VII of UNCLOS.

It stressed the Philippines, in the spirit of good and friendly relations with China, has exhausted almost all available tools through its three-track approach – political, diplomatic, and legal – to peacefully settle the dispute in the West Philippine Sea.

But China declined the earlier invitation by the Philippines to bring the matter peacefully under any of the available dispute settlement mechanisms under Part XV of UNCLOS, it stated.

The resolution said UNCLOS prescribes the maritime entitlements of coastal states as well as their rights, jurisdiction and obligations over these maritime entitlements

As parties to the UNCLOS, both China and the Philippines have to fulfill in good faith the obligation to exercise the rights, jurisdiction and freedoms recognized under UNCLOS in a manner which would not constitute an abuse of right according to the resolution.

"China violates not only the rights and jurisdictions of the Philippines but also of other coastal states by claiming virtually the entire South China Sea through its nine-dash line claim. China further violates the rights and jurisdictions of the Philippines through its continuous aggressive assertion of its nine-dash line claim in the West Philippine Sea,' the resolution said.

Earlier, Foreign Affairs Secretary Albert del Rosario said the country has taken the step of bringing China before the Arbitral Tribunal in order to achieve a peaceful and durable solution to the dispute over the West Philippine Sea.

The DFA chief also said Manila is hoping that the arbitration tribunal will direct China to respect the Philippines' sovereign rights and jurisdiction over its EEZ, continental shelf, contiguous zone, and territorial sea over the West Philippine Sea.

Arbitration has been defined both by the 1899 and 1907 Hague conventions as "the settlement of differences between judges of their own choice and on the basis of respect for law."

An arbitration tribunal may be composed of a single arbitrator or a collegiate body. Contracting parties would have to shoulder arbitration costs.

As for the cost of the proceedings that the Filipino people would have to pay for, Del Rosario said "one cannot put a price in the concerted effort of the Filipino people and government in defending our patrimony, territory, national interest and national honor."

He said the arbitration proceedings may last between three and four years. Arbitration, however, would have to be approved by both parties.

China has consistently refused to discuss the territorial row under any arrangement save bilateral negotiations between the Philippines and China.

Zhang Hua, Deputy Chief of Political Section and Spokesperson of the Chinese Embassy, said the "disputes on South China Sea should be settled by parties concerned through negotiations."

"This (settlement of disputes through negotiations) is also the consensus reached by parties concerned in the DOC (The Declaration on the Conduct of Parties in the South China Sea)," Zhang said in a text message sent earlier to PhilStar.com.

Huff Post: China, the Philippines and the Rule of Law

As a rising global power, and being the largest and most important economy and military power in Asia, the People's Republic of China (PRC) has had the luxury of being able to do more or less whatever it wants in challenging its neighbors over disputed land and oil and gas claims -- knowing that in all likelihood, it would not be challenged. That dynamic is now changing, with Japan vigorously contesting the PRC's claim over the Senkaku Islands and the Philippines taking its claim over the Spratly Islands to court.

Earlier this week, the Philippines notified the Chinese Ambassador in Manila that it was pursuing "compulsory process" under Article 287 of the United Nations Convention on the Law of the Sea (UNCLOS). According to Foreign Affairs Secretary del Rosario, the "Notification and Statement of Claim" will initiate arbitral proceedings under UNCLOS over the merits of the PRC's claim to much of the South China Sea (known as the West Philippine Sea to Filipinos). The suit was immediately recognized as the first "legal case" against the PRC over a number of territorial and maritime disputes with its neighbors, many of them members of the ASEAN. In initiating arbitration, Del Rosario stressed that the Philippines has exhausted virtually all political and diplomatic avenues for a peaceful negotiated settlement since 1995, thus requiring the commencement of the arbitral suit.

The threshold question really is whether the PRC can be bound by UNCLOS courts and tribunals, including its arbitral panels. The PRC ratified UNCLOS in 1996, but in 2006 the Chinese government filed a statement with UNCLOS saying that it "does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a), (b), and (c) of Article 298 of the Convention." These provisions of the Convention refer to "Compulsory Procedures Entailing Binding Decisions" issued by at least four venues: the International Tribunal on the Law of the Sea, the International Court of Justice, an "arbitral tribunal" which may refer to the Permanent Court of Arbitration (PCA), and a "special arbitral tribunal."

While there are venues available for the resolutions of disputes under the UNCLOS regime, the PRC does not wish to be bound by its compulsory processes -- the ICJ and PCA included. In essence, it wants to be able to pick and choose which statutes of the treaties it has voluntarily signed it wishes to adhere to, and be free to ignore those that it finds 'inconvenient.' Can a state remain a party to a treaty or convention without being bound by its rules? Can contracting states adhere to an international legal regime and simultaneously opt out of any binding force required or to be required by that regime?

The PRC knew this day would come. Its 2006 statement effectively served as a "reservation" against any binding outcome of UNCLOS's grievance procedure in the future. It is worth pointing out that international law does accord states the freedom to disclaim whole corpuses of treaty rules through irreducible principles of self-determination, state independence, and state sovereignty. In short, the PRC can decide to opt out of treaty rules which it considers to be inconsistent with national or domestic policy, and it did so in the manner required by the treaty.

Del Rosario actually concedes the PRC's 2006 reservation, and did not attempt to take any exceptions, at least at the time the Chinese Ambassador was served with notice. Del Rosario said: "... The Philippines is conscious of the PRC's Declaration of August 25, 2006 under Article 298 of UNCLOS (regarding optional exceptions to the compulsory proceedings), and has avoided raising subjects or making claims that the PRC has, by virtue of that Declaration, excluded from arbitral jurisdiction."

The Philippines' attempt to haul the PRC to an international tribunal is a problem because it is invoking the very compulsory jurisdiction which the PRC has disavowed since 2006. But even if the Philippine attempt to arbitrate fails, any marshaled argument can subsist, and that case may be fielded in other venues. If military activity were to flare up, the same case can be brought to the United Nations Security Council -- the principal repository of enforcement powers under the UN system. A state can be found to be in violation of a substantive legal norm even without a coercive or compulsory judgment in a given venue, provided of course that there is truth to the argument supporting a violation and is appreciated by the alternative venue.

While the PRC disavows UNCLOS against the Philippines, it is expressly invoking UNCLOS provisions in its claims against Japan -- so it wants to have its cake and eat it, too. In 2009, the PRC submitted a claim over the Senkaku Islands (which, like Scarborough Shoal and the Spratlys, are believed to be fuel rich) and turned to UNCLOS rules in defining and delineating its continental shelf beyond the 200 nautical mile exclusive economic zone, again within the meaning of UNCLOS. There is some international legal doctrine supporting the view that a state's acts in one place can be used as an admission and adversely bind that State in another set of circumstances.

The larger point is that the PRC has not personified the Rule of Law in this case, or in others related to maritime borders, and wants to be able to 'cherry pick' which provisions of international treaties it will willingly comply with, and which it will not. That is behavior unbecoming of a rising global power and will make states which are signatories to treaties with the PRC wonder if its signature is worth the paper it is printed on. This cannot be in the PRC's long-term interest. While it is too early to say whether the Philippine arbitration claim will prevail in court, the PRC will certainly not prevail in the court of international public opinion.

Daniel Wagner is CEO of Country Risk Solutions, a cross-border risk management consulting firm based in Connecticut (USA), and author of the book "Managing Country Risk".

Edsel Tupaz is owner of Tupaz and Associates and a professor of international and comparative law, based in Manila, Philippines. He is a graduate of Harvard Law School and Ateneo Law School.