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An attitude that smacks of might makes right

by Frank Ching

China’s rejection of the case filed by the Philippines regarding a maritime territorial dispute under the United Nations Convention on the Law of the Sea suggests that the path to a smooth settlement, legal or otherwise, is blocked.

“China’s refusal to accept the Philippines’ request for arbitration has full grounding in international law,” the Chinese Foreign Ministry said last week.

The Philippines took the case to international arbitration after a standoff lasting several weeks a year ago at Scarborough Shoal in the South China Sea, which Manila calls the West Philippine Sea. The area is about 160 kilometers from the Philippines and 800 km from China.

The Philippines is a military ally of the United States and, during the Scarborough standoff, Filipino Foreign Secretary Albert F. del Rosario publicly recalled that Secretary of State Hillary Clinton had said that the United States “will honor its treaty obligations to the Philippines.”

The State Department’s response the next day was to urge that “diplomatic efforts be used to resolve the current situation.”

A media report quoted an unidentified American official as saying: “I don’t think that we’d allow the U.S. to get dragged into a conflict over fish or over a rock.”

China also has territorial disputes with other Southeast Asian countries, including Vietnam, Malaysia and Brunei. In the East China Sea, China has a dispute with Japan, another U.S. ally, over a group of islets.

To resolve the Scarborough deadlock, both sides are said to have agreed to withdraw their ships. However, the Chinese ships returned and roped off the entrance to the lagoon. Since then, the Chinese have been in control and Filipino fishermen have been barred.

Despite Beijing’s rejection of arbitration, the International Tribunal for the Law of the Sea has chosen a five-judge panel, which will have to decide first whether it has jurisdiction to look into the Philippine-Chinese dispute. Among other things, the Philippines is asking the tribunal to declare China’s “nine-dash-line” maps claiming virtually the entire South China Sea to be unlawful.

China, a signatory of the U.N. Convention on the Law of the Sea, rejects the convention’s dispute resolution mechanism. But if the tribunal decides that it has jurisdiction, presumably it will proceed to deal with the case. Whether China will accept its judgment is doubtful.

Beijing is taking the position that the Philippines is actually seeking a determination on the sovereignty of the land features and that “issues of territorial sovereignty are not the ones concerning the interpretation or application of the U.N. Convention on the Law of the Sea.”

However, last year, when it was dealing with a dispute between Bangladesh and Myanmar, the tribunal decided that it has jurisdiction to delimit “the maritime boundary of the territorial sea, the exclusive economic zone and the continental shelf between the Parties.”

While the exclusive economic zone and the continental shelf may involve sovereignty, the territorial sea, by definition, is part of a country’s sovereign territory. To a layman, this creates the impression that the tribunal already has set a precedent by which it can deal with sovereignty issues.

China also asserts that the Philippines, by signing along with other members of the Association of Southeast Asian Nations the Declaration on the Conduct of Parties in the South China Sea in 2002, agreed to resolve disputes with China through negotiations. The Chinese position appears to be that aside from negotiations, the Philippine government has no other alternative, including seeking an international ruling.

Actually, in the declaration, both China and the ASEAN countries agreed they would “undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes.” Actions such as roping off the entrance to a lagoon to keep out other countries’ fishermen and stationing ships off disputed territory would appear to be escalation of a dispute.

The declaration is not binding but both China and ASEAN have agreed to sign a binding code of conduct in the South China Sea. A statement released last week after an ASEAN summit held in Brunei called for “the early conclusion of a Code of Conduct in the South China Sea.”

The ball is now in China’s court. It should agree to such a code of conduct, which in effect will be to maintain the status quo, since use of force to resolve disputes will be ruled out. Meanwhile, China’s position is that ASEAN member states have no choice except bilateral negotiations.

Given the disparity in size between China and those countries, it may well turn out to be a case of applying the principle that might makes right.

Frank Ching is a Hong Kong-based journalist and commentator. Email: Frank.ching@gmail.com Twitter: @FrankChing1

  • bridgebuilder78

    But might does make right.