Legally murky waters of West Philippine Sea

The 1987 Constitution echoes a sentiment that has been articulated in our fundamental law since 1935. Section 2 of Article II adopts “the generally accepted principles of international law as part of the law of the land.”

Based on this foundation, we sought on Jan. 23, 2013, the resolution of our dispute with China over the South China Sea—an issue long standing since the 1930s—through a peaceful process of arbitration.

A layman’s guide to understanding what is involved in that arbitration process can be found in the good writeup recently published by Jay L. Batongbacal, a professor at the University of the Philippines College of Law. For reasons of space, I propose to focus on a major legal issue that separates the positions of the Philippines and China: whether the five-member arbitral tribunal convoked at the instance of the Philippines under an international agreement signed by and ratified by both countries known as the United Nations Convention on the Law of the Sea (Unclos) is the right body to make the adjudication. By way of caveat, any inaccuracy or error in my rendition is mine alone and certainly not the good professor’s.

The Philippines is questioning at the arbitration proceeding the so-called “nine-dash line map” which China arbitrarily adopted to support its claim of sovereignty, jurisdiction, historic title or rights over the maritime areas within those lines. The Philippines’ position is that the nine-dash line map is invalid. It is contrary to the Unclos. Enclosed within those lines are waters which are beyond what was agreed upon by the parties in the Unclos.

According to the Philippines, China has concretized its words into actions by physically occupying and forcibly controlling specific areas in the map. Early this week, the headlines of this newspaper spoke of the Philippines’ condemnation of China’s massive land reclamation activities, which was expressed at the annual meeting of the state parties to the Unclos in New York. The reclamation, the Philippines said, intrudes into what we consider our territory, tramples upon our sovereignty, and robs us of our rights to our exclusive economic zone.

China, for its part, has been consistently rejecting the jurisdiction—i.e., the legal authority of a body to rule on the issue between the parties—of the arbitral tribunal. Right from the beginning, when the Philippines initiated the arbitration case in 2013, China formally resisted our attempts to submit our dispute to arbitration. It in fact returned the initiatory documents filed by the Philippines—legal papers known as “Notification and Statement of Claim”—to us less than one month after we announced our action.

When the tribunal met for the first time at the Peace Palace in The Hague on July 11, 2013, China, in a note to the tribunal on Aug. 1, reiterated its refusal to subject itself to the proceedings.

On May 14, 2014, in compliance with an order issued by the tribunal on March 30, 2014, the Philippines filed its memorial, or a principal pleading that explains the party’s position in full. The tribunal—which, under Article 9 of Unclos Annex VII, is authorized to proceed with the arbitration despite the absence of an opposing party or its failure to defend—gave China seven months, or until Dec. 15, to submit its counter-memorial. Within a week China sent a note to the tribunal insisting that it was not submitting itself to the proceedings.

Other countries have joined the fray. On Dec. 5, the United States issued an official report analyzing China’s claims to areas in the South China Sea. It seemed to have made a distinction between a claim over the islands and a claim over the waters beyond those islands. It faulted China for being ambiguous on the nature of its claims. Nevertheless, the report maintained that the nine-dash line claims can be internationally acceptable as a claim to territorial sovereignty over the islands within the lines, and the waters beyond the islands can be considered valid if made in accordance with the Unclos. The US State Department paper denied any validity to China’s claims to historic title or to historic rights, as have been articulated by China in its official statements.

Vietnam, too, wanted to say its piece. In a statement that has not been released to the public, Vietnam recognized the tribunal’s jurisdiction and agreed with the Philippines’ position against China’s nine-dash line claim. At the same time, however, it did request that the tribunal give due regard to the legal rights and interests of Vietnam. The tribunal has acknowledged receipt of Vietnam’s statement.

China, apparently affected by these not-too-secret expression of views of the United States and Vietnam, released a position paper. China was steadfast in refusing to participate in the arbitration, but it presented some substantial legal points. It maintained that the issue is one of sovereignty over the islands and other maritime features of the South China Sea. And, raising a “prejudicial question,” it claimed that no decision can be made without, as a prerequisite, making maritime delimitations. It invoked a 2006 declaration it made in terms of the Unclos.

However, this is precisely why the Philippines waived the issue of sovereignty in its petition lodged with the tribunal.

Ricardo J. Romulo is a senior partner of Romulo Mabanta Buenaventura Sayoc & De Los Angeles.