After the Chinese snub


Last Feb. 19, the Chinese Foreign Ministry, through Ambassador Ma Keqing, sent a diplomatic note to our Department of Foreign Affairs that it was rejecting the Philippine notice to arbitrate and the statement of claims on the West Philippine Sea controversy. This was the arbitration resorted to by the Philippines to challenge the legality of China’s nine-dash lines under the compulsory and mandatory dispute settlement procedure of the UN Convention on the Law of the Sea (Unclos). This effectively means that China has snubbed the arbitration and will not participate in the proceedings.

This is truly unfortunate. China has repeatedly maintained that it exercises “undisputable sovereignty and rights” in the waters within what it refers to as its “nine-dash lines” in the West Philippine Sea, the second busiest sea lane in the world. And yet, it has failed to explain the nature and the basis of its claims. The arbitration would have been the appropriate forum where it can regale the rest of the world with both its legal and factual basis for its claim on these troubled waters believed  to contain anywhere from 1 billion to 200 billion barrels of oil and natural gas reserves. With its latest decision to ignore the arbitration request, China has again left the entire world, and not just the Philippines, to guess what, if any, is its legal basis to these waters.

The arbitration initiated under Annex VII of the Unclos will of course proceed. The Philippines has appointed a former president of the International Tribunal for the Law of the Sea (Itlos) and one of its sitting judges, German national Rüdiger Wolfrum, as its arbitrator for the proceedings. China’s snub now makes it incumbent on the current president of the Itlos, Shunji Yanai, a Japanese national, to complete the five-person tribunal.

Pundits have said that China’s refusal to participate will be contrary to its own interest. First, it leaves the decision on who will comprise a majority of the tribunal to a longtime Japanese diplomat, even if he is today president of the Itlos. Japan itself has ongoing maritime disputes with China, and while judges of international tribunals are expected to be independent, human experience dictates that they cannot completely be disinterested. Furthermore, a Chinese journal has warned that China should not take the Philippine arbitration lightly. Citing an unnamed expert, China was advised  that “the Philippines is using this arbitration to gain support and sympathy from its neighbors [Vietnam is supporting it] and its allies [US Secretary of State John Kerry and the EU Parliament head support it]”. The claim, according to this expert, also “hypes suspicions of China at the United Nations and elsewhere.”

The Unclos provides that all controversies relating to issues of “application and interpretation” under it shall be submitted to its compulsory and mandatory dispute settlement procedure. Under this provision, state parties may choose to submit these issues either to the International Court of Justice, the Itlos, and, in default of an express choice, through binding arbitration. Although the Unclos itself does not say so, still it is axiomatic in the field of arbitration that only the Itlos can rule on its own competence.

Here, the first task for the tribunal will be to determine if the issues submitted by the Philippines for arbitration—the legality of the nine-dash lines, whether certain low-tide elevations in the disputed Spratly group of islands should be adjudged as part of the Philippine continental shelf, as well as the issue of the nature of the waters in the disputed Panatag shoal beyond its territorial sea of 12 nautical miles—fall within the reservations made by China. A reservation is a unilateral declaration that certain subject matters should not fall within the dispute settlement procedures of the Unclos. In the case of China, it opted out of the dispute settlement procedure for issues under 1 (a) (b) and (c) of Article 298 of the Unclos. These include disputes involving maritime delimitation; military activities, including military activities by government vessels and aircraft engaged in noncommercial service; and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction.

While arbitral tribunals go to great lengths in ruling on its own competence to convince parties to the proceedings to eventually voluntarily comply with its award, the reality is that the Chinese snub may have made our task of procuring a favorable ruling from the Itlos easier. For while the Itlos will still labor to issue a decision which it would want the world and China to believe is correct and sound, the reality is that unopposed litigious claims are always less cumbersome than disputed ones. We may yet thank China for its snub.

H. Harry L. Roque Jr. is the director of the UP Law Center’s Institute of International Legal Studies.

Follow Us

Follow us on Facebook Follow on Twitter Follow on Twitter

More from this Column:

Recent Stories:

Complete stories on our Digital Edition newsstand for tablets, netbooks and mobile phones; 14-issue free trial. About to step out? Get breaking alerts on your mobile.phone. Text ON INQ BREAKING to 4467, for Globe, Smart and Sun subscribers in the Philippines.

Short URL: http://opinion.inquirer.net/?p=47781

Tags: China , Commentary , DFA , Foreign Affairs and International Relations , Harry L. Roque Jr. , opinion , West Philippine Sea

Copyright © 2014, .
To subscribe to the Philippine Daily Inquirer newspaper in the Philippines, call +63 2 896-6000 for Metro Manila and Metro Cebu or email your subscription request here.
Factual errors? Contact the Philippine Daily Inquirer's day desk. Believe this article violates journalistic ethics? Contact the Inquirer's Reader's Advocate. Or write The Readers' Advocate:
c/o Philippine Daily Inquirer Chino Roces Avenue corner Yague and Mascardo Streets, Makati City, Metro Manila, Philippines Or fax nos. +63 2 8974793 to 94


  • Ukraine FM: We are ready to fight Russia
  • Slain officer’s ‘diagram’ rocks PNP
  • 2 contractors fined P25,000 for delays in Edsa rehab
  • Luisita beneficiaries take over renters
  • 5 years of hard work pay off for top UP grad
  • Sports

  • Sharapova advances to Stuttgart quarterfinals
  • Galedo caps ride of redemption
  • Beermen, Express dispute second semis slot today
  • Lady Agilas upset Lady Bulldogs in four sets
  • NLEX roars to 7th D-League win
  • Lifestyle

  • Wear a rainbow on your wrist
  • Wearing Kate Moss
  • Sail into summer
  • Life lessons from the Ultimate Warrior
  • Young actor profile: Teejay Marquez
  • Entertainment

  • Kristoffer Martin: from thug to gay teen
  • Has Ai Ai fallen deeply with ‘sireno?’
  • California court won’t review Jackson doctor case
  • Cris Villonco on play adapted from different medium
  • OMB exec’s assurance: We work 24/7
  • Business

  • Gaming stocks gain, PSEi eases on profit-taking
  • Cebu Pacific flew 3.74M passengers as of March
  • Corporate bonds sweeteners
  • Professionals in the family business
  • Foreign funds flowed out in Q1, says BSP
  • Technology

  • Vatican announces hashtag for April 27 canonizations
  • Enrile in Masters of the Universe, Lord of the Rings?
  • Top Traits of Digital Marketers
  • No truth to viral no-visa ‘chronicles’
  • ‘Unlimited’ Internet promos not really limitless; lawmakers call for probe
  • Opinion

  • Editorial Cartoon, April 25, 2014
  • No deal, Janet
  • Like making Al Capone a witness vs his gang
  • MERS-CoV and mothers
  • A graduation story
  • Global Nation

  • Afghan hospital guard kills 3 American doctors
  • Career diplomat is new PH consul general in Los Angeles
  • US4GG: Aquino should ask Obama for TPS approval, drone technology
  • Complex health care system for California’s elderly and poor explained
  • Tiff with HK over Luneta hostage fiasco finally over
  • Marketplace