February 6, 2013
Manila and ASEAN: Upping the ante on the South China Sea
by Dr BA Hamzah@www.nst.com.my
HIGH STAKES: In its zeal to take on China’s claims in the South China Sea, the Philippines has alienated itself
BY initiating an arbitral proceeding against China, the Philippines has upped the ante on the South China Sea. Manila says it is left with no choice but to take Beijing to arbitration after exhausting all remedies. However, many see Manila’s action as a desperate act — a publicity stunt to regain international prestige following the Scarborough Shoal fiasco in April last year.
Manila’s request for an arbitral award opens up a can of worms, especially when its Regime of Islands claim (to the Kalayaan Islands and Scarborough Shoal) under its 2009 Baseline Law is contestable under international law.
Incidentally, its new official map that has renamed the South China Sea as the West Philippines Sea has re-incorporated Sabah, which is sure to reopen old wounds.
People who live in glasshouses should not throw stones, as they will expose not only the throwers’ hypocrisy but also vulnerability.
No one doubts that Manila is fed-up with Beijing’s intransigence. Lately, the Philippines has mounted diplomatic and political offensives in the South China Sea in a hope to get the United States and the international community to sanction China. Unfortunately, following a rebuff by Washington, the offensive failed to undermine China, the Goliath who was close to former president Gloria Arroyo, now under house arrest.
As a domestic political agenda, Manila’s unilateral legal proceeding is likely to be futile again. Its success record in international arbitration has been dismal. For example in 1927, the US, acting on behalf of Manila, failed to convince judge Max Huber that the island of Palmas belonged to the Philippines. The judge awarded the ownership of the island (now known as Miangas) to Indonesia, although the island is within the 1898 Treaty of Paris Limits.
In October 2001, the Philippines sought permission to intervene as a non- party in the case involving the sovereignty of Pulau Ligitan and Pulau Sipadan. the International Court of Justice (ICJ) rejected (14 to 1) the request.
China, the world’s second largest economy and a permanent member of the United Nations Security Council, has said no to arbitration proceedings. Without its consent, it is unlikely for the tribunal to act; furthermore, the tribunal may lack jurisdiction to hear the case.
Manila has insinuated that Beijing can no longer hide behind its declarations under Article 298 of the UN Convention on the Law of the Sea (UNCLOS). In 2006, China declared, “it does not accept any of the procedures provided in Section 2 of Part XV of United Nations Convention on the Law of the Sea with respect of all categories of disputes…”, including sovereignty issues.
Manila says this proceeding against China is not over sovereignty. Yet, the notification statement implies the contrary.
Manila wants the proposed tribunal to determine the legality of China’s nine-dash line of 1948 and to determine the legal status of 10 features that China has occupied in the South China Sea (mainly in the Spratlys) as either “islands or rocks”. These issues are jurisdictional in nature. The nine-dash line relates to jurisdictional and sovereignty issues.
The Philippines brings the case to the tribunal under UNCLOS. Those familiar with jurisdictional claims in the South China Sea are aware of the nine-dash line, published in 1948. This means the line has preceded UNCLOS by thirty-four years; UNCLOS came into force in 1996.
The only way for UNCLOS to have jurisdiction over the case is to give it a retrospective power, which arguably constitutes an abuse of rights and goes against the legal principle of good faith (Article 300 of UNCLOS).
The unfortunate omission of the applicable law under Article 38 of the ICJ Statute in the notification statement has significantly weakened Manila’s position.
I also find it puzzling for Manila to ask the tribunal to “require China to bring its domestic legislation into conformity with its obligations under UNCLOS”.
On the diplomatic front, Manila has garnered zero support from the claimant parties.
Their silence results possibly from disagreement with the manner the Philippines handled a vital matter in the light of Statement on ASEAN’s Six Point Principles on the South China Sea of July 20 last year.
Moreover, Manila’s objection in May 2009 to the Joint submission to the UN Commission on the Limits of the Continental Shelf is still fresh in the minds of Hanoi and Kuala Lumpur.
Is Manila telling the world that it has broken ranks with ASEAN?The way forward is not to break ranks but to mend fences with China.
The official map of the Philippines labels the South China Sea as the West Philippine Sea and includes Sabah.