The incident sparked off by a Philippine warship's coercion against Chinese fishermen in the lagoon of the Huangyan Island on 10 April remains unsettled. The Philippine side has asked to take the issue to the International Tribunal for the Law of the Sea (ITLOS), as if China must choose either to take the invitation or show no respect to the international law and disobey the law of the sea. Such misleading behavior does not help to resolve the issue peacefully.
First, China has the right to decide on which way to use to settle disputes related to territorial sovereignty.
One of the ways recognized in the traditional international law for a country to acquire territorial sovereignty is by "pre-occupation". China has sufficient historical evidence to prove that it had discovered the Huangyan Island as early as in the Yuan Dynasty, named it, incorporated it into Chinese territory and exercised sovereign jurisdiction. And China has long been conducting exploitation and development of the island. Unable to challenge China with strong historical evidence, the Philippines then resorted to the United Nations Convention on the Law of the Sea (herein after the Convention) to claim sovereignty over the Huangyan Island and sovereign rights over its adjacent waters. Yet all countries know that maritime rights of coastal countries come from their land rights. There is no such provision in the Convention to grant a country the sovereignty over other countries' islands that situated within its exclusive economic zone (EEZ).
It's the mission and responsibility of a country to safeguard its sovereignty and territorial integrity. The principles of equality of national sovereignty and peaceful settlement of international disputes are basic ones in modern international law. The international law stipulates that countries must address international disputes, including territorial disputes, through peaceful means. As for which specific procedure to adopt, each sovereign country has the freedom to make its own choice. Article 280 of the Convention, "settlement of disputes by any peaceful means chosen by the parties," says clearly that disputes are better to be addressed by peaceful means agreed upon between the parties and by their own choice, including the political and legal means set out in Article 33 of the Charter of the United Nations. This means that the Philippines has no right to impose on China a particular recourse to address the Huangyan Island dispute.
Second, the International Tribunal for the Law of the Sea (ITLOS) has no compulsory jurisdiction on disputes concerning island sovereignty and maritime delimitation.
The Philippines claimed that even if China rejects its invitation, it can unilaterally take the dispute to the ITLOS. This lacks legal basis. According to Article 281 of the Convention, "Procedure where no settlement has been reached by the parties," only when parties to the dispute failed to settle the disputes within the agreed time-limit and through agreed means, the procedures in the Section 2 of Part 15 of the Convention, "compulsory procedures entailing binding decisions", become applicable. In other words, if parties to the dispute have exhausted all political means including conciliation but are still unable to settle the dispute, then by request of any party to the dispute, the dispute can be taken to arbitration or international tribunals for a binding decision.
However, according to Article 287 of the Convention, State Parties can choose freely from the International Court of Justice (ICJ), ITLOS, an arbitral tribunal and a special arbitral tribunal, instead of a particular court or a tribunal. Only when the State Parties choose the same court or tribunal, the court or the tribunal has the jurisdiction.
In addition, according to Article 298 of the Convention, not all disputes related to the law of the sea can be put into compulsory legal procedures. Coastal countries can declare in writing to exclude compulsory procedures with respect to disputes concerning the exercise of sovereign and jurisdiction rights by coastal states in their exclusive economic zones (EEZ) and continental shelf, maritime delimitation (including territorial sea, EEZ and continental shelf) and historic bays and titles, military activities, including military activities by government vessels and aircraft engaged in non-commercial service and disputes in respect of which the Security Council of the UN is exercising the functions assigned to it by the Charter of the United Nations.
The Chinese government has submitted a written declaration to the Secretary General of the United Nations based on the afore-mentioned provisions on 25 August 2006. The declaration has made it clear that China does not accept any international adjudication and arbitration provided for in Section 2 of Part 15 of the Convention for the disputes as listed above. Therefore, even if the Philippines had its way to sue China in the ITLOS and ICJ, the tribunal or the court still has no jurisdiction.
The Philippines claimed that it will defeat China with international law. Yet it should be aware that the law opposes not only the strong countries bullying the weak, but also the small ones cheating.
(The author is a professor at the University of International Relations based in Beijing, China, and the Vice President of Beijing Society of International Law. This article first appeared on Lianhe Zaobao, a Chinese newspaper in Singapore)