THE VERY first line of the preamble of the United Nations Convention on the Law of the Sea (Unclos) makes clear what the agreement is all about: “Prompted by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea…”
Several lines later, it also makes mention about “Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment…”
The Philippines and China are both signatories to Unclos. The Philippines ratified it in 1986, and China in 1996. By that alone, one would presume that China would honor its basic commitments under Unclos and welcome the implementation of a “legal order for the seas and oceans which will facilitate international communication,” such as an impartial arbitration court that would mediate between it and the Philippines over the two countries’ competing claims in the South China Sea, or the West Philippine Sea as the Philippines now prefers to call it.
It was China, in fact, that first implicitly recognized the United Nations’ authority and jurisdiction to recognize any claims it has to the area: In 2009, it submitted to the international body a novel claim called the “nine-dash line” that baldly asserted ownership over nearly the entire South China Sea. Under the nine-dash line, China’s territory would dramatically expand and basically hug the coastlines of a number of countries around the West Philippine Sea. As to the Philippines, it would extend up to the country’s western seaboard, from the north in Ilocos Norte down to Palawan—territory already well within the 200-nautical-mile (approximately 370 kilometers) exclusive economic zone guaranteed to the Philippines by Unclos.
China’s claim is already tenuous under those fundamental contradictions. But instead of adhering to international law and abiding by the agreement it had signed along with some 166 other countries, China has chosen to use its status as a newly emergent superpower to force the issue its way. It has rejected any form of international mediation, insisting instead on bilateral talks between it and other claimant-countries. Any exclusive bilateral talks, however, could only proceed under its own, patently unequal, terms, the claimant country having to accept, ab initio, the validity of China’s so-called historic sovereignty over the sea, and any talks thereafter—on the sharing of islands and resources, for instance—becoming, in effect, the giant country merely being generous to its weaker neighbors.
China’s insistence on such a medieval potentate-vassal arrangement to impose its claims has just been dealt a blow by a UN arbitral court soundly rejecting its position that the international body has no jurisdiction on the case. Despite it being a party to Unclos, China has stubbornly refused to participate in the mediation proceedings lodged by the Philippines, on grounds of its “indisputable sovereignty” over the contested area. Predictably, it has loudly rejected the court’s ruling. And it has only increased its angry rhetoric against the Philippines for having had the temerity to ask the international community to subject its behavior to greater scrutiny.
The Philippines’ victory is but the start of a long slog ahead; it needs as much international help as it can get as the UN Permanent Court of Arbitration now proceeds to hear the merits of seven out of 15 claims for arbitration the country has submitted. The gist of the Philippines’ position is not China’s sovereignty per se over the West Philippine Sea and the islands, reefs and resources therein. It is China’s nine-dash-line claim, which, as the UN panel noted, “reflects disputes between the two states concerning the interpretation or application” of Unclos.
With that nuanced argument, China is being asked to abide by its very own word—by the signature it had affixed to Unclos, by which it had committed to the rest of the world that it would recognize the mechanism provided by the agreement to hash out any disputes arising from sea-related matters. The Philippines is being rational and fair in its insistence on UN-sanctioned mediation. Its initial victory appears to validate its basic position—that China is the unreasonable party in this dispute.
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