Manila playing a shoal game?
by Xinjun ZHANG, Associate Professor in International law, Tsinghua University, Beijing
2012/05/29
 

During the China-Philippine standoff at Scarborough Shoal (China calls Huangyan Island) in the past three weeks, the Philippine government launched a campaign to drag China into International Tribunal for the Law of the Sea, first by a "humble invitation" and later a threat to bring the case to it unilaterally.

However, the Philippine government seemed to have completely forgotten to check, or intentionally to have ignored the other state concerned, while the check is a must in a normal course of diplomacy for dispute settlement.  It is well known that China maintains a long-standing position concerning dispute settlement in the South China Sea in favor of bilateral negotiations, a primary means of peaceful settlement of disputes in international law endorsed by both the United Nation's Convention on the Law of the Sea (UNCLOS Art.280, China and Philippine are Party States) and the UN Charter (Art.2.3; Art.33.1). More specifically under UNCLOS compulsory procedures, China submitted to the UN Secretary- General (August 25, 2006) a declaration in accordance with Article 298 of the UNCLOS, to opt out compulsory procedures entailing binding decisions (including ITLOS) with respect to maritime delimitation disputes. Here what China as a Party State did is to follow this concrete rule of UNCLOS which has been given consent by the other Party States, including the Philippines. Under such circumstance, the Philippine government's campaign looks rather out of the common sense in diplomacy, if not particularly against good faith or constituting abuse of rights prescribed in UNCLOS Article 300.

In such a context, China of cause rejected the invitation, as the Philippine government might have expected. For the Philippine's threat to bring the case to ITLOS unilaterally, even if the Philippine government has not been circulated by the UN Secretary- General with China's 2006 declaration (which is highly impossible), or the ongoing dispute had not fell within that categories of the dispute opted out by the same declaration (as the Philippine government might have believed), the Philippine government would have chosen a wrong forum (ITLOS) under the UNCLOS, because China so far has not declared to chose any one of the compulsory procedures entailing binding decisions under UNCLOS (for other maritime disputes not being opted-out), and therefore according to the UNCLOS procedure, she "shall be deemed to have accepted arbitration in accordance with Annex VII" (UNCLOS Article 287, paragraph 3) but not ITLOS. It means that ITLOS can never be a forum for the Philippines to unilaterally start a procedure with China for whatever reasons.

It is not clear whether the omission and error made by the Philippine Department of Foreign Affairs (DFA) is due to lack of professional knowledge, or the campaign simply indicates what the Philippine government intended to do is to submit a frivolous lawsuit without serious purpose and value. But of cause the campaign itself must have some value. It seems that the Philippine government must have calculated that it would win some points at least from the public opinion in its domestic politics. However, internationally, this maneuver out of the track of law and diplomacy can hardly gain respect or sympathy from other states. The attitude of the ASEAN countries as well as the United States well illustrates this. And more dangerously, it creates doubts among international community on the sincerity of the Philippine government on the matter of dispute settlement.

Even worse for the Philippines, these ill-formed legal arguments accompanied with the very idea of the campaign, may have an adverse effect on China and international community for them to understand the Philippines' real intention and position concerning Scarborough Shoal: does Scarborough Shoal really matter for the Philippines?  Let's go over some key points of the arguments.

According to Mr. Rosario's statement dated April 17, "the purpose of the exercise (inviting China to ITLOS) will be to ascertain which of us has sovereign rights over the waters surrounding Scarborough Shoal." Here in the statement Mr. Rosario claimed nothing directly to the sovereignty of Scarborough Shoal. Of cause, since the dispute is concerning "sovereign rights" over the waters surrounding Scarborough Shoal, it may be reflected that the Philippine claimed such "sovereign rights" based on the ownership of Scarborough Shoal. However, since Philippine's position on the legal nature of Scarborough Shoal is that it is not "island" but only "rock", which cannot generate EEZ and continental shelf, the above "sovereign rights" is therefore those of EEZ or continental shelf claimed by the Philippines from her "nearest coast of Luzon" and has nothing to do with Scarborough Shoal.

So far we do not know whether the Philippine government is serious in preparing a unilateral submission of the case to ITLOS or other judicial venues (legally it needs to consider the others if being serious, as suggested above). Should the government prepare to do so, it would have to forget about Scarborough Shoal as well. The reason is that UNCLOS dispute settlement procedures only apply to "any dispute concerning the interpretation or application of this Convention." A well-established interpretation is that, while UNCLOS provides no single rule concerning the ownership of territory, territorial disputes fall out of the subject matter jurisdiction of any UNCLOS procedures.

What sounds more striking is the Philippine government's position on the legal nature of Scarborough Shoal. In a statement "Philippine Position on Bajo de Masinloc and the Waters Within its Vicinity" presented by DFA on April 18, DFA is quite affirmative "Bajo de Masinloc (Scarborough Shoal) is not an island," and therefore these rocks "have only 12 NM maximum territorial waters under Article 121 of UNCLOS." Yes, Article 121.3 of the UNCLOS states that "Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf", but whether or not Scarborough Shoal shall fall into this paragraph depends on interpretations of the article, which is regarded to be "a perfect recipe for confusion and conflict." Nevertheless, real owner of the kind of insular features (ownership not disputed) will restlessly defend that their "rocks" do not fall into the paragraph and therefore can generate EEZ and continental shelf. Recent state practice can be found in "Okinotori Rock" (Owner Japan submitted to CLCS asking continental shelf for it) and "Snake Island" (Owner Ukraine claimed EEZ and continental shelf in ICJ). By the way, ICJ evaded and CLCS suspend to consider the status of these rock or island and avoid the difficult interpretive issue.

When looking at practice of other states as owners of insular features, Philippine people should ask their government if it really believe that it owned Scarborough Shoal. And if the answer were yes, they would need to urge the government to take rights seriously.

Overall, the Philippines behavior toward the ongoing standoff will not make it  "a very, very strong case", neither in procedure nor on merits. On the contrary, it indeed raises a question to the international community as well as the Philippine people: Does Scarborough Shoal really matter for the Philippines?

(This article first shown on the Straits Times, a Newspaper in Singapore)

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