Category: UNCLOS

Will China withdraw from UNCLOS if UN court decides in favor of PH?

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Shen Dingli

Shen Dingli

The possibility of China pulling out of the United Nations Convention on the Law of the Sea has been mentioned in informal discussions among foreign affairs experts and observers but it was the first time that a Chinese scholar said it in public.

Shen Dingli, speaking to reporters after his speech in a forum “What is to be done?: Resolving Maritime Disputes in Southeast Asia” organized by the Angara Centre for Law and Economics at Marriott Hotel last Thursday, said it was a mistake for China to have joined the 1982 UNCLOS, “an international treaty that provides a regulatory framework for the use of the world’s seas and oceans to ensure the conservation and equitable usage of resources and the marine environment and to ensure the protection and preservation of the living resources of the sea.”

UNCLOS also addresses such other matters as sovereignty, rights of usage in maritime zones, and navigational rights, the UN website states.

“We should not have joined UNCLOS,” Shen said.

Shen, a professor of international relations at Fudan University, qualified his statements as “personal” but everybody knows that no one in China speaks in international without the permission of the government. That means, what he says, has the tacit approval of the government.

A highly regarded academician, Shen is the founder and director of China’s first non-government-based Program on Arms Control and Regional Security at Fudan University. His research areas cover China-US security relations, nuclear arms control and disarmament, nuclear weapons policy of the United States and China, regional non-proliferation issues concerning South Asia, Northeast Asia and Middle East, test ban, missile defense, export control, as well as China’s foreign and defense policies.

Shen received his PH.D in physics from Fudan University and did his post-doctorate in arms control at Princeton University.
UNCLOS came into force on November 16, 1994 after the requisite 60 countries’ ratification. As of November 7, 2012, 164 States have ratified, acceded to, or succeeded to, UNCLOS including the Philippines and China .(The United States, although it recognizes it as general international law has not ratified it.)

Asked what China would do if the UN Arbitral Court under UNCLOS where the Philippines lodged a suit to declare China’s nine-dash line map illegal, upheld the Philippine position, Shen said, “We don’t care a bit.”

China’s 9-dash line covers some 85 per cent of the South China Sea and encroaches on the territory of other countries including the Philippines, Brunei, and Malaysia. Taiwan and Vietnam.

China has refused to participate in the UN judicial process. Although Philippine officials said the U.N does not have to the mechanism to compel China to abide by the decision. Neither does the Philippines have the naval might to implement it.
But it will be a blow to China’s international image, which leaders are sensitive about.

“If China quits UNCLOS, it will not be bound by it,” he said adding that the Asian superpower can quit UNCLOS anytime it wants to.” China has a right not to be party to it. Anybody can quit the treaty if the treaty is not to its interest.”

Shen said there are four ways to settle a territorial conflict like what is straining Philippine-China relations: war, UN tribunal, negotiation, mediation.

He said the Philippines opted for the UN tribunal while China wants negotiations. He suggested to try out mediation by a neutral country like India.

After China snub, what now?

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Atty. Romel Bagares

By Romel R. Bagares

Just as pundits have predicted, China soon announced it is not taking part in the arbitration proceedings initiated by the Philippines over the two countries’ territorial dispute in the West Philippine Sea (South China Sea for the Chinese).

So, what happens next – does this mean an abrupt end to the Philippines’ quest for an effective legal solution to the riddle of the Chinese Nine-Dash Line claim?

Well, not quite.

Or at least, not yet.

The Philippine case against China was anchored on Annex VII of the UN Convention on the Law of the Sea (UNCLOS).

Click here (VERA Files) for the rest of the article.

Veteran diplomat’s advice to PH re UN case vs China: ‘Stop off-tangent remarks’

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By LauroL.Baja, Jr., VERA Files

Baja at the UN

The Philippines has finally brought to the compulsory dispute mechanism of the United Nations Convention on the Law of the Sea (UNCLOS) its conflict with China over some areas in the West Philippine Sea. Finally, because many believe that this action should have been done before 25 August 2006, when China declared “it does not accept any of the procedure provided for in section 2 of Part V of the Convention referred to in paragraph (a) (b) and (c) of Article 298 of the Convention.”

Be that as it may, we should accept and support the wisdom and circumstances which led the Philippines to file the case with the Arbitral Tribunal. Views on why only now, why the Arbitral Tribunal, and why file it all, should now focus on how best to contend with China’s possible defense that the dispute is subject to its reservations.

Update: China opposes taking sea disputes to UN

That we filed the case is not yet an achievement and we should be fully prepared and persevere just in case proceedings start.

The first obvious step is to desist from too much off-tangent remarks that may pre-empt the positions of prospective arbitrators and also our counsels. We also run the risk of telegraphing our positions. President Aquino cautioned against “giving the other side a preview of everything that we will do.”

General expressions of support from nations should be welcomed with quiet dignity and gratitude. Besides the case may fall already under the subjudice rule.

Our statement of Notification and Claim has remarkable parallel with the Statement of Claim of Barbados against Trinidad and Tabago concerning the delimitation of the exclusive economic zone and continental shelf between the two states.

There may be lessons to be learned comparing the two Statements.

The Barbados Statement is more detailed than the Philippine Statement. Unless it is a matter of tactics or strategy, we must specify in our Memorials, which I assume will be submitted later, what we want the Arbitral Tribunal to award us, and why. This will avoid a possible decision not to take cognizance of the case for failure to state legal,convincing cause of action.

In subsequent submissions, we must define what we mean by “unlawful activities”; specify the “acts of interferences” by China, what and where are the “rocks” located; why is China’s nine-dash-line contrary to UNCLOS; and what provisions or articles of the Convention have been violated.

If reports in the printed media are correct, the Philippines is requesting the Arbitral Tribunal to issue among others, an Award that “Declares that China’s rights in regard to maritime areas in the South China Sea, like the rights of the Philippines, are those that are established by UNCLOS, and consist of its rights to a Territorial Sea and Contiguous Zone under Part II of UNCLOS, to an EEZ under Part V, and to a Continental Shelf under Part VI.”

Do we really admit that China has such rights in the South China Sea?

It is important that we submit a petition for “Provisional Remedies” to protect our sovereign rights in the West Philippine Sea. The fact that we have gone to the Arbitral Tribunal will not stop Chinese activities in the area. It is right and necessary since the case will take years before a decision is made, it at all.

Some believe our resort to arbitration is a sign that our diplomacy failed. Perhaps but this should not prevent the Philippines from trying again. Both countries desire a peaceful and just solutions to the South China Sea issue. And domestic structures and geopolitical environment are ever changing.
Diplomacy requires confident, creative and consistent improvisation and imagination to deal with uncertainties in a creative way.

(The author is a veteran Philippine diplomat. He was the Philippine Permament Representative to the United Nations (May 2003- Feb.2007). Prior to that, he was Foreign Affairs Undersecretary for Policy.)

(VERA Files is put out by veteran journalists taking a deeper look at current issues. Vera is Latin for “true.”)

China’s occupation of Bajo de Masinloc gave PH no choice but go to U.N.

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Two of three Chinese fishing vessels at Bajo de Masinloc

So far, all that Beijing has said of the Philippines’ suit asking the United Nations to declare as illegal its nine-dash-line map is that it “will complicate the issue.”

China reiterated its earlier denunciation of the Philippines’ “illegal occupation” of some islands in the South China Sea, referred to in the Philippines as “West Philippine Sea.”

Sources with contact in Beijing said China’s Foreign Ministry was “stunned” that the Philippines pushed through what they have been talking about for almost two years now.

China is most concerned of its international respectability. This suit, the first against China at the U.N., does not augur well for a new leadership that would come in next month.

China has been consistent in its position not to “internationalize” the issue of conflicting territorial claims in the South China Sea and over Bajo de Masinloc (Huangyan Island to the Chinese) and to deal the issue bilaterally.

The Philippines defied China, the emerging world superpower, last Tuesday and decided to ask the United Nations Arbitral Tribunal to declare the nine-dash line map illegal.

China submitted on May 7, 2009 before the U.N. Commission on the Law of the Sea the “nine-dash line” map, so called because instead of coordinates, it shows a series of nine dashes or dotted lines forming a ring around the South China Sea area, which China claims is part of its territory.

The “nine-dash line map” puts 90 percent of the whole South China Sea under Chinese jurisdiction Bajo de Masinloc, 124 nautical miles away from Zambales and clearly within the Philippines 200 NM exclusiove economic zone (it’s 467 nautical miles from mainland China) and Spratlys group of islands which are also claimed wholly and partly by the Philippines,Vietnam, Malaysia, Brunei and Taiwan.

The DFA said it is not the International Tribunal on the Law of the Sea or ITLOS that the Philippine lodged its suit. It is before the Arbitral Tribunal under Article 287 and Annex VII of the United Nations Convention on the Law of the Sea or UNCLOS under which it does not need China to agree to the arbitration.

The process has started with the handing by the DFA last Tuesday to Ambassador Ma Keqing of the note verbale on the U.N. suit and a copy of the 19-page Notification and Statement of Claim.

Sources close to Malacanang and the DFA said the tipping point for the Philippines was the declaration by Chinese Foreign Vice Minister Fu Ying later last year that they have no intention of withdrawing their three remaining ships in Bajo de Masinloc which is tantamount to their occupation of a Philippine territory.

In the Philippine Notification and Statement of Claim, it used the word “seize” in describing the Bajo de Masinloc incident:

Paragraph 20 states: “In 2012, China seized six small rocks that protrude above sea level within the Philippines’ exclusive economic zone, unlawfully claimed an exaggerated maritime zone around these features, and wrongfully prevented the Philippines from navigating, ort enjoying access to the living resources within this zone, even though it forms part of the Philippines’ EEZ.

“These half dozen protrusions, which are known collectively as Scarborough Shoal (Bajo de Masinloc n the Philippines; Huang Yan Dao in China) are located approximately 120 M west of the the Philippine island of Luzon……”

Paragraph 21 states, “Until April 2012, Philippine fishing vessels routinely fished in this area, which is within the Philippines’ 200 M exclusive economic zone. Since then, China has prevented the Philippines from fishing at Scarborough Shoal or in its vicinity, and undertaken other activities inconsistent with the Convention. Only Chinese vessels are now allowed to fish in these waters, and have harvested, inter alia, endangered species such as sea turtles, sharks and giant clams which are protected by both international and Philippine law.”
China gave the Philippines’ no choice.