Manila has no lo­cus standi in sea case

China Daily (Canada) - - COMMENT -

AFor­eignMin­istry doc­u­ment on the Philip­pines’ move to take the South China Sea dis­pute to an in­ter­na­tional tri­bunal for arbitration re­it­er­ates that China will not ac­cept, let alone par­tic­i­pate, in such kind of ad­ju­di­ca­tion. The doc­u­ment, is­sued on Sun­day, ex­plains why the tri­bunal has no ju­ris­dic­tion over the dis­pute.

Aside from the greater is­suesManila’s arbitration re­quest in­volves, the “manda­tory arbitration” it is seek­ing be­fore ful­fill­ing some prior pro­ce­dural obli­ga­tions is also an im­por­tant rea­son why the tri­bunal should not take up the case. Ac­cord­ing to Ar­ti­cle 288 of the United Na­tions Con­ven­tion on the Law of the Sea, whether or not a court or tri­bunal has ju­ris­dic­tion over any dis­pute be­tween par­ties de­pends on whether the dis­pute is sub­mit­ted in ac­cor­dance with part XV of the Con­ven­tion. And Ar­ti­cle 286 also says that any dis­pute on the in­ter­pre­ta­tion or ap­pli­ca­tion of the Con­ven­tion shall, where no set­tle­ment has been reached by re­course to sec­tion 1, be sub­mit­ted at the re­quest of any party to the dis­pute to the court or tri­bunal hav­ing ju­ris­dic­tion un­der this sec­tion.

A study of the rel­e­vant clauses of the doc­u­ment showsManila has not ful­filled the obli­ga­tions of “set­tling the dis­pute by peace­ful means” and “ex­chang­ing views with other par­ties to the dis­pute” be­fore tak­ing the dis­pute to the tri­bunal.

Ac­cord­ing to Ar­ti­cle 279 of the Con­ven­tion and Clause 33 of the UN Char­ter, peace­ful means to re­solve the dis­pute in­clude talks, in­ves­ti­ga­tions, me­di­a­tion, arbitration, ju­di­cial set­tle­ment and other peace­ful means agreed to by the dis­put­ing par­ties. But de­spite the in­clu­sion of “arbitration”, the Ar­ti­cle ex­cludes “manda­tory arbitration”, whichManila seeks.

Ar­ti­cle 279 states only sketchily that par­ties should set­tle a dis­pute on the in­ter­pre­ta­tion and/or ap­pli­ca­tion of the Con­ven­tion through peace­ful means in ac­cor­dance with rel­e­vant in­ter­na­tional doc­u­ments, and Ar­ti­cle 298 and other ar­ti­cles present sup­ple­men­tary state­ments on mat­ters such as how to choose peace­ful means. For ex­am­ple, Ar­ti­cles 280 and 281 en­cour­age rel­e­vant par­ties to re­solve their dis­putes peace­fully through the ne­go­ti­a­tion means they agree to.

Ar­ti­cle 279 does of­fer mul­ti­ple ways for par­ties to re­solve their dis­putes. It may be im­prac­ti­cal to re­quire a party to try all pos­si­ble ways to bi­lat­er­ally re­solve a dis­pute be­fore the “manda­tory pro­ce­dure” is launched, but go­ing by es­tab­lished in­ter­na­tional prac­tices, one party should at least hold talks with the other to re­solve the dis­pute.

In the South China Sea case, the Philip­pines has sought the in­ter­na­tional tri­bunal’s arbitration on as many as 13 items, although it has not held talks with China, as re­quired by the ar­ti­cles and clauses of the Con­ven­tion. There­fore, Manila’s ar­gu­ment that it has abided by Ar­ti­cle 279 and ex­hausted the pos­si­bil­ity of re­solv­ing the dis­pute with Beijing through talks does not hold wa­ter. In fact, the Philip­pines has never earnestly re­sponded to China’s in­sis­tence that the dis­pute be set­tled through ne­go­ti­a­tions.

Ac­cord­ing to Ar­ti­cle 283, when a dis­pute arises over the in­ter­pre­ta­tion or ap­pli­ca­tion of the Con­ven­tion, the dis­put­ing par­ties should pro­ceed ex­pe­di­tiously to an ex­change of views to set­tle it through talks or other peace­ful means. The ar­ti­cle also says the par­ties should ex­pe­di­tiously ex­change views where a pro­ce­dure for set­tling the dis­pute has been ter­mi­nated with­out a set­tle­ment. This means dis­put­ing par­ties should ex­change views be­fore tak­ing fur­ther ac­tion after the fail­ure of ne­go­ti­a­tion pro­ce­dures in or­der to avoid es­ca­lat­ing the dis­pute owing to one party’s ex­treme ac­tions.

Manila’s claim of hav­ing ex­changed views with Beijing on the set­tle­ment of the South China Sea dis­pute on many oc­ca­sions since 1995, as re­quired by Ar­ti­cle 286, is base­less. As stated by Ar­ti­cle 286, the pur­pose for ex­chang­ing views is to choose suit­able peace­ful means such as talks and di­a­logue for the set­tle­ment of the dis­pute. But what Manila claims to be ex­change of views with China since 1995 is only the “con­crete con­tents of the dis­pute”, which is es­sen­tially ir­rel­e­vant to the peace­ful means cho­sen to re­solve the is­sue. Manila’s other sets of ev­i­dence are also lit­tered with such log­i­cal de­fects.

In short, the “peace­ful means” cho­sen by par­ties for the set­tle­ment of any dis­pute through ex­change of views do not in­clude the “manda­tory pro­ce­dures”. The ar­ti­cle is aimed at pre­vent­ing one party from push­ing for manda­tory, rather than non-manda­tory, set­tle­ment of a dis­pute. Thus, Manila’s claim that it has in­vited China to present the bi­lat­eral dis­pute to the in­ter­na­tional court for arbitration does not fall into the scope of the “ex­change of views”.

The fact re­mains that the Philip­pines has never even tried to ful­fill its obli­ga­tions to “set­tling the dis­pute by peace­ful means” and “ex­chang­ing views with other par­ties”. And the uni­lat­eral arbitration Manila seeks is in essence a con­tra­ven­tion of the “pri­or­ity ap­pli­ca­tion prin­ci­ple”, as re­quired by the Con­ven­tion. The au­thor is a pro­fes­sor of in­ter­na­tional law at South­west Univer­sity of Po­lit­i­cal Sci­ence and Law, Chongqing.

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