No need to invite China,PHL should bring case to UN

Foreign Secretary Albert del Rosario is in New York now.

The Department of Foreign Affairs yesterday released his statement saying,” In pursuing a peaceful settlement of the Scarborough Shoal issue, we fully intend to humbly invite our Chinese friends to join us in the International Tribunal on the Law of the Sea (ITLOS).”

ITLOS was established to adjudicate conflict over the interpretation and implementation of the United Nations Convention of the Law which defines the rights and responsibilities of nations in their use of the world’s oceans.

Del Rosario said, “The purpose of the exercise will be to ascertain which of us has sovereign rights over the waters surrounding Scarborough Shoal where Chinese ships are currently engaging in illegal activities within the Philippine Exclusive Economic Zone (EEZ). “

We are not sure if the Philippines will go ahead with bringing to ITLOS the issue of Scarborough Shoal even if China spurns its invitation, which we expect would happen. China, opted out of compulsory arbitration provided in UNCLOS.

But lawyer Harry Roque, who teaches public international law at the University of the Philippines, said it does not need the agreement of China for the issue on Scarborough Shoal, which is 124 nautical miles (therefore within the Philippines’ 200 NM exclusive economic zone) from Zambales, to be brought to the ITLOS because it involves the country’s sovereign rights.

Roque, in his article in the Philippine Daily Inquirer, differentiated the Spratlys issue from the Scarborough Shoal case. He said: “Scarborough Shoal is separate and distinct from the dispute over the disputed Spratly islands in the West Philippine Sea. This is because Scarborough Shoal presents issues that are less insurmountable than those arising from the dispute in the Spratlys.

“The difference between Scarborough Shoal and the Spratlys is both physical and legal. As a shoal, Scarborough does not involve conflicting claims to land territory. Accordingly, the Philippine claim to it may be resolved wholly on the basis of the United Nations’ Convention on the Law of the Sea (Unclos). And without a doubt, the Philippine claim to the area is superior because it falls within its 200-nautical-mile exclusive economic zone. This gives us the exclusive right to explore and exploit the living resources in these waters. The Spratlys, on the other hand, and this is contrary to repeated declarations by the Department of Foreign Affairs, cannot be resolved wholly through the Unclos. The reason is obvious: The Unclos only deals with the sea and cannot be applied to disputed islands.

“The point is: With the incursion of China in an undisputed maritime area under the sovereign right of the Philippines, we could avail ourselves of the mandatory and compulsory jurisdiction of the UN Tribunal of the Law of the Sea, which we could not otherwise resort to in the case of the Spratlys. This is because unlike issues involving the exercise of sovereign rights, which are subject to the compulsory jurisdiction of the tribunal, conflicting claims to both maritime and land territory will require the consent of China to litigate.”

The Philippines should also push its long-discussed plan to bring to the UN the issue of China’s ridiculous nine-dash line map which covers the whole of South China Sea and encroaches on the territory of a number of countries in Asia.

Supreme Court Justice Antonio Carpio, in his speech at the Ateneo de Davao University October last year,Carpio urged the government not to waste any more time to bring the issue to the international court.

He said, “First, a state that opts out of the UNCLOS compulsory dispute settlement mechanism is still subject to compulsory conciliation under UNCLOS. While the decision of an UNCLOS conciliation commission is not binding on the parties, its ruling is nevertheless persuasive. If the conciliation commission concludes that China’s 9-dashed line map has no basis in international law, then that is practically the end of China’s claim to 90% of the South China Sea. World opinion will turn strongly against China if it insists on its 9-dashed line map. The South China Sea is the second busiest international sea-lane in the world. More than one-half of the world’s merchant fleet by tonnage passes through the South China Sea every year. More than 80% of the crude oil for Japan, South Korea, and Taiwan passes through the South China Sea. The entire world has an important stake in the South China Sea. A country like China that depends on international trade for its growth and prosperity cannot simply ignore world opinion. As events in the break-up of Yugoslavia and the upheavals of the Arab Spring have shown, world opinion has become the defining moral force behind the Rule of Law.

“Second, UNCLOS allows states to opt out of compulsory arbitration only with respect to the delimitation of overlapping maritime zones or issues involving historic bays or titles forming part of internal waters. The validity of China’s 9-dashed line map is an issue that is independent of maritime delimitation because it also affects fishing, scientific research and freedom of navigation in the South China Sea. No historic bay or title is involved because China obviously cannot claim the South China Sea as its internal waters.

“Also, whether the geographic features in the Spratlys Islands Group in the West Philippine Sea are rocks or islands entitled to maritime zones is an issue not subject to the opt out clause as this issue does not involve the delimitation of maritime boundaries. Once the maritime status of these rocks and islands are defined, as distinguished from their sovereignty status, the extent of the disputed area in the South China Sea will also be defined and narrowed. If none of the islands generate their own EEZs, then there will be no overlapping EEZs between China and the Philippines in the Spratlys Islands Group. If some islands generate their own EEZs, then the dispute will be narrowed to those overlapping EEZs, freeing the rest of the South China Sea from any dispute.

“Thus, some international law scholars have suggested that opposing claimant states should subject the validity of China’s 9-dashed line map, as well as the maritime status of the rocks and islands in the South China Sea, to compulsory arbitration under UNCLOS.

“In this crucial battle to secure our EEZ under UNCLOS, the Philippines can never lose to China, unless the Philippines commits an irremediable blunder like bringing the battle outside of UNCLOS. We must bring the battle to an UNCLOS tribunal for resolution of the dispute under UNCLOS. Our right to our EEZ in the South China Sea is guaranteed under UNCLOS. UNCLOS will lose its reason for existence if it fails to secure for the Philippines its EEZ. If the Philippines brings the battle outside of UNCLOS, it can never expect to win over China, whether militarily or diplomatically.”

Philippine leadership is aware of that reality. Del Rosario said,”The whole world knows that China has myriad more ships and aircraft than the Philippiness. At day’s end, however, we hope to demonstrate that international law would be the great equalizer.”