Suing China for peace, yet again

Recently, three Chinese coast guard vessels blocked two Philippine Navy (PN) ships en route to resupply soldiers stationed on BRP Sierra Madre, a state vessel beached on Ayungin Shoal.

In the 2016 South China Sea arbitration, the Philippines complained about similar activities by China in the shoal. The Arbitral Tribunal held that the shoal is a low-tide elevation (LTE); as such, it is not the territory of any state (paragraph 309), but it accrues to the Philippines as part of the latter’s exclusive economic zone (paragraphs 646-647).

Unfortunately, the tribunal characterized the activities of China in the shoal as military in nature and, therefore, excluded from its jurisdiction by the United Nations Convention on the Law of the Sea (Unclos) (paragraph 1161).

What then is our legal recourse against continuing Chinese military activities in the shoal? May we sue China in the International Court of Justice (ICJ)?

International law requires the consent of both the Philippines and China to sue before the ICJ. In 1947, the Philippines and the Republic of China (Taiwan) gave consent to the ICJ to resolve “any … dispute (between) them which cannot satisfactorily be adjusted by diplomacy or through mediation or arbitration” (article 2).

Through United Nations General Assembly Resolution No. 2758 (1971) or the One China Policy, China succeeded to the rights and obligations of Taiwan under the Treaty. In its 1972 notice to the UN, China disowned those treaties signed by Taiwan after 1949, but reserved the right to withdraw from those treaties signed before then.

While the Chinese embassy does not disclose the Treaty, there is no notice in the UN or ICJ of China’s withdrawal from it. In its 1975 Joint Communiqué with us, China did not disown the Treaty. Thus, while noting Resolution No. 2758, the ICJ has maintained the Treaty in the list of instruments conferring upon it compulsory jurisdiction.

Meanwhile, in 1975, the Philippines accepted the compulsory jurisdiction of the ICJ except over disputes involving its territorial and maritime rights.

As matters stand, we may not sue China in the ICJ over our territorial and maritime disputes in the SCS, but we may sue it over any dispute relating to the interpretation and application of the Treaty.

To convince the ICJ that it has jurisdiction over the incidents in the shoal, the dispute’s resolution must not be seen to depend on the prior settlement of territorial and maritime claims. We must also demonstrate that the dispute arose from acts that are in violation of the Treaty, and that other remedies have been exhausted.

The Chinese ambassador viewed the incident as trespass into the “Nansha Qundao archipelago.” Foreign Secretary Teodoro Locsin Jr. protested the incident as an illegal intrusion into the Kalayaan Island Group. In effect, as characterized by both officials, the dispute is territorial and outside the jurisdiction of the ICJ.

We must decisively break away from the Chinese “archipelago framework” by wholly aligning with the Arbitral Award. The Arbitral Award broke up the Spratlys into individual rocks or high-tide elevations only able to generate a territorial sea. It declared that there is nothing in Unclos or in history supporting a claim to the Spratlys as an archipelago (paragraphs 573-576). By staying within this framework, we should easily prove that the dispute is over Chinese military activities in our EEZ. In the Oil Platforms Case (2003) and Military and Paramilitary Activities in and against Nicaragua (1986), the ICJ characterized similar military activities as a breach of amity, and awarded provisional measures and reparations.

After having had our diplomatic protests fall on deaf ears, making a case for the ICJ should bring our point (and resupply vessels) across, loud and clear.

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Melissa Loja holds a Ph.D. in public international law. Romel Bagares teaches international law in three Philippine law schools.