Participants to the recently concluded 4th biennial Conference of the
Asian Society of International Law in New Delhi, India last November 15,
2017 heard for the first time the Chinese position on the Philippine
arbitral claim on the West Philippines Sea dispute.
In the said conference, I delivered a paper entitled “What next after
the Chinese Snub? Examining the UNCLOS dispute settlement procedure:
Philippines vs. China”. My paper argued that the issues that the
Philippines brought to the arbitral claims, to wit, the validity of
China’s nine-dash lines, whether certain low-tide elevations where China
has built installations pertain to the Philippines as part of its
continental shelf; and whether the waters surrounding the territorial
sea of Panatag form part of the Philippines EEZ are issues of
interpretation of specific provisions of the UNCLOS and hence, were
within the compulsory and binding dispute settlement procedure of the
UNCLOS.
Further, while I acknowledged that China’s reservations on maritime
delimitation and law enforcement activities in the exercise of sovereign
rights were more challenging obstacles to hurdle, they were not
insurmountable because the language of the Philippine claim does not
call for a ruling involving any of the reservations made by China.
My paper assumed that the Tribunal’s jurisdiction over China as party to
the proceedings was well settled. This is because China, as a party to
the UNCLOS, has accepted the dispute settlement procedure of the
Convention, together with all the provisions of the Convention which
were all adopted on the basis of consensus.
The Chinese Judge to the International Court of Justice, Judge Xue
Hanqin, was present in the conference. Judge Xue is the highest woman
official in China prior to her election to the Court. Previously, she
served as chief legal adviser and head of the treaties office of the
Chinese Foreign Ministry and Ambassador to the Netherlands and Asean.
She is said to have been groomed to be part of the Central Bureau of
China’s People’s Party had she not opted to join the ICJ. While Judge
Xue and I have been good friends, having served together in the
Executive Council of the Asian Society of International Law for the past
6 years, I knew it would still be awkward to have her listening to my
presentation.
But the most unusual thing happened after my 25-minute presentation.
Judge Xue, explaining that since she was the only Chinese present in the
conference because the Chinese delegates were denied visas by Indian
authorities, took the floor for the next 20 minutes and for the first
time expounded extensively on the Chinese position on the Philippine
arbitral claim. This was unusual because magistrates, be it from
domestic or international courts, will normally refuse to comment on an
actual dispute, which could come to their court for adjudication. This
certainly applies to the West Philippines Sea dispute.
Judge Xue raised four crucial points. Her first was that the Philippine
claim involved territorial claims which is outside the purview of
UNCLOS. She added though that “since the end of World War II, the
international community, has acknowledged the existence of China’s
nine-dash lines with no country ever questioning it until oil resources
were discovered in the area.” Without expounding on the nature of the
lines, she claimed that it is “not considered as a boundary line” and
they “have not affected international navigation in the area.” She
claimed that there was “”no international law applied in this regard to
the region.”
Second, Judge Xue argued that 40 countries, including China, made
declarations to the dispute settlement procedure of the UNCLOS.
According to her, this means “these 40 states have not accepted the
dispute settlement of the Convention as being compulsory”. She said that
“when countries joined UNCLOS I, they are not deemed to have given up
all their previous territorial claims.”
Third, she said that as China’s first Ambassador to Asean, she knows
that the countries of Asean and China have agreed to a code of conduct
relating to the South China Sea. Under this code, disputes must be
resolved through negotiations and not through arbitration. She claimed
that this obligation was “a substantive obligation binding on all
claimant state.”
Fourth, Judge Xue explained that China opted out of the arbitration
because “no country can fail to see the design” of the Philippine claim
which she described as having “mixed up jurisdiction with the merits.”
She opined that the Philippines’ resort to arbitration complicated what
she described as an “impressive process between Asean and China”. What
the Philippine did “was to begin with the “complicated part of the South
China Sea dispute” rather then with easier ones such as “disaster
management.” This later pronouncement all but confirmed that the very
limited humanitarian assistance extended to the Philippines by China in
the aftermath of Yolanda was because of the Philippine resort to
arbitration.
Judge Xue ended her intervention by exhorting the Philippines to
consider joint use of the disputed waters, a matter that according to
her has been successfully resorted to by China and Vietnam.
While Judge Xue’s intervention made our panel, without a doubt, the most
memorable exchange in the conference, her declarations provided us with
many answers that China has refused to give us.
We have Judge Xue to thank for this.
source: Manila Times Column of
No comments:
Post a Comment