source: Philippine Daily Inquirer/Asia News Network through www.ph.news.yahoo.com
Manila
(Philippine Daily Inquirer/ANN) - After almost a year since the Philippines'
stalemate with China on Panatag Shoal (Scarborough Shoal), it's about time we
brought the controversy to the binding and compulsory dispute settlement
procedure of the UN Convention on the Law of the Sea (Unclos). But contrary to
many media reports, the action is not before the International Tribunal on the
Law of the Sea (Itlos), or before the United Nations. What was initiated is ad
hoc arbitration pursuant to the Unclos.
Under
the dispute settlement procedure of the Unclos, state parties may specify where
they will submit all disputes over the "interpretation and
application" of the Convention, either to the International Court of
Justice (ICJ) or the Itlos. If a state party does not specify which body it
will bring these disputes to, the default choice will be through binding
arbitration under Annex VII of the Convention.
Since
both China and the Philippines did not choose either the ICJ or the Itlos, they
are both deemed to have agreed to resolve these disputes to binding
arbitration.
What
happened last Tuesday was that we began the procedure of binding arbitration by
serving China with a notification that we are initiating the same and providing
China with a statement of our claims.
We
have also chosen our arbitrator in what will be a 5-member arbitral tribunal.
China should now choose its own arbitrator. Thereafter, both parties should
select the rest of the arbitrators from a list maintained by the UN Secretary
General. If they cannot agree on the three further arbitrators, it is the
president of the Itlos who will make the appointment to complete the tribunal.
After
the tribunal has been constituted, China will reply to our statement of claims.
It is expected that it will challenge the jurisdiction of the tribunal by
invoking its reservation on the dispute settlement procedure. This can either
be that the controversy relates to the exercise of sovereign rights and/or
involves an issue of maritime delimitation. Both these grounds are provided in
the reservations made by China in 2006.
This
raises the question as to why the Philippines did not hale China to binding
arbitration under the Unclos before 2006. The first incident over Panatag
occurred in 1997 during the term of President Fidel Ramos, when we arrested
Chinese poachers for illegal fishing in the area and charged them before a
metropolitan trial court in Zambales.
At
that time, China had not yet made reservations on the dispute settlement
procedure of the Unclos. Perhaps it was thought that Panatag may be resolved
through bilateral negotiations? Whatever the reason, we now have to contend
with China's defence that the dispute is subject to its reservations.
This
notwithstanding, credit goes to the Solicitor General because our submission of
claims is crafted in a manner that will exclude all of China's reservations.
For instance, the submission asked the tribunal to rule on the validity of the
controversial "nine-dash line," since it does not constitute either
China's internal waters, territorial sea, or exclusive economic zone. This asks
the tribunal to rule, as an issue of interpretation of the Unclos, whether the
nine-dash lines comply with the Convention.
Likewise,
China has built permanent structures on reefs such as Mischief and Subi, which
are permanently under water. The submission prays that the tribunal declare
that since these are neither "rocks" nor "islands," these
should be declared as forming part of our country's continental shelf, or the
natural prolongation of our land mass.
On
Panatag, our submission asks the tribunal to declare that the six very small
rocks permanently above water can generate only 12 nautical miles of
territorial sea. This declaration, if made, will clarify that the waters
surrounding the small rocks still form part of our 200-nautical-mile exclusive
economic zone.
While
our submission bodes well for a peaceful resolution of the dispute, it will
still not completely resolve the West Philippine Sea disputes. The Unclos,
after all, being the applicable law on the seas, cannot be utilised to resolve
conflicting claims to islands. This aspect of the dispute will still be
resolved on the basis of which claimant-state has the superior evidence of
effective occupation. Nonetheless, a legal clarification on China's claims to
alleged islands and rocks that are under water, as well as the issue of which
state can exercise sovereign rights on the waters surrounding Panatag, will
simplify resolution of the entire dispute.
If
we are successful, what will remain for resolution is only the issue of
conflicting claims to islands. While China will have to give its separate
consent to litigate the status of these islands, at least the issue of freedom
of navigation and the exercise of sovereign rights over a large part of the
disputed waters will have a final and binding legal determination.
Lest
I be accused of being overly optimistic, the truth is China may very well argue
that its legal entitlement to the disputed waters is based on its
"uncontroverted" sovereignty to land territories. Even if the
arbitral tribunal cannot exercise jurisdiction over these claims to land
territories, it may be enough to remove jurisdiction from it because the
matter, as phrased by China, may no longer be an issue of "interpretation"
and "application" of the Unclos. If this happens, we will be back to
where we were: a standoff.
H.
Harry L. Roque is director of the Institute of International Legal Studies,
University of the Philippines Law Centre.
COPYRIGHT:
ASIA NEWS NETWORK
