The Philippine government's decision to challenge China's expansive claims to the South China Sea by invoking the arbitration provisions of the UN Convention on the Law of the Sea (Unclos) is both unexpected and overdue.
Many simply assumed that the government’s legal option (its so-called third track of resolving the conflict over territorial and maritime claims, after political means and diplomatic measures) meant filing a case before the right court; in this case, the International Tribunal on the Law of the Sea (Itlos), in Hamburg, Germany. At the same time, the clear and compelling arguments for the Philippine case fed a growing impatience for legal action. Why did the Department of Foreign Affairs (DFA) take so long?
Officially, the DFA answer is that it wanted to try all other avenues for a peaceful resolution of the dispute. “Having exhausted all possible initiatives, we feel the time to act is now. If we do not act now, we will be in default,” was the second item in the prepared Q & A list the DFA distributed on the day it announced the legal action. But it is no secret that the administration needed the time, not only to prepare its case, but to study its legal choices carefully.
On initial view, it seems the government has chosen well. Lawyer Harry Roque, an expert in international law and a Socratic gadfly in Philippine politics, praised the action, in particular the framing of our case: “Credit goes to the solicitor-general [Francis Jardeleza] because our submission of claims is crafted in a manner that will exclude all of China’s reservations,” he wrote in a commentary.
What the government has done is to begin the proceedings of arbitration (the third of four possible means of resolving disputes involving Unclos) – essentially calling on China to co-form an arbitration panel to resolve only one aspect of the dispute: claims about waters and the continental shelf. (The Unclos does not apply to conflicting claims involving islands.)
As the DFA explained: “China’s nine-dash line claim encompasses practically the entire West Philippine Sea. We must challenge the unlawful claim of China under their nine-dash line in order to protect our national territory and maritime domain.”
After the DFA handed a note verbale explaining the legal action to the Chinese ambassador in Manila, the Chinese Embassy predictably reiterated the official Chinese position that the conflicting claims be resolved through bilateral talks. “The Chinese side strongly holds [that] the disputes on the South China Sea should be settled by parties concerned through negotiations,” an embassy statement read.
But China only insists on direct negotiations in those disputes where it sees itself as enjoying an advantage. That makes any attempt to resolve the conflict over claims subject to Beijing’s increasingly assertive exercise of its new superpower status, rather than a reasoned discourse over legal and historical evidence.
When China suffers from a disadvantage, however, multilateral dispute-resolution mechanisms become an option. In its dispute with Japan over islands in the East China Sea, which the Japanese call Senkaku and the Chinese Diaoyu, for example, Tokyo enjoys the distinct advantage of possession. To counter this advantage, Beijing filed a submission before the Commission on the Limits of the Continental Shelf (another Unclos forum) just last month, seeking information “concerning the outer limits of the continental shelf beyond 200 nautical miles in part of the East China Sea”.
This is the same commission that declared early last year that the massive Benham Rise (in potentially oil-rich waters to the east of Luzon) is officially a part of the Philippines.
Whether Beijing will agree, in the Philippine case, to the arbitration procedure outlined in the very law of the sea which anchors its submission in the Japanese dispute remains to be seen. It seems to have learned its lessons from the example of the other superpower, the United States, in dealing selectively with multilateral forums. To be sure, the arbitration provisions under the so-called Annex VII themselves allow for compulsory proceedings; Article 9 includes the principle that “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”
With this legal challenge, the issue, finally, is joined.