Manila deals a clever hand with desire for arbitration
By William Choong, The Straits Times/Asia News Network
January 30, 2013, 11:50 am TWN
In the past year, China and the Philippines have been fighting a war of words over disputed islands in the South China Sea, and ASEAN unity on the issue has come under pressure.
Last week, Manila surprised observers when Foreign Secretary Albert del Rosario handed Chinese Ambassador Ma Keqing a note notifying Beijing it was seeking international arbitration to declare Beijing's moves in the oil-rich waters as “unlawful” under the 1982 U.N. Convention on the Law of the Sea (Unclos).
“The Philippines has exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of its maritime disputes with China,” Rosario said last Tuesday at a news conference. On the surface, the attempt looks like a long shot. China has repeatedly said it has “indisputable sovereignty” over islands in the South China Sea and its adjacent waters. Beijing prefers bilateral talks to resolve the dispute, and for other claimant states not to internationalize the issue.
More importantly, China had in 2006 excluded itself from dispute settlement mechanisms available under Unclos. This relates to issues pertaining to maritime delineation, historic bays and military activities. Hence, China will not be compelled to participate in the arbitral tribunal.
But if one examines Manila's case, as detailed in a 21-page note verbale with notification and statement of claim released last Tuesday, the Philippines does have some tricks up its sleeve.
The document states that Manila is not asking the tribunal to decide on which country enjoys sovereignty over the islands, nor a delimitation of any maritime boundaries. And Manila did not raise any subjects China has excluded from arbitral jurisdiction.
Instead, the Philippines is calling on the tribunal to decide on a major issue — whether China's so-called nine-dash or nine-dotted line claim to nearly the entire South China Sea is lawful.
Within the maritime area encompassed by the nine-dash line, China has also laid claim to, occupied and built structures on certain “submerged banks, reefs and low tide elevations that do not qualify as islands under Unclos but are parts of the Philippine continental shelf,” Manila's statement said. These features include Mischief Reef, which China occupied in 1995. China also occupied what the Philippines calls Scarborough Shoal last June.
By asking the tribunal to decide on the legality of China's nine-dash line under Unclos, the Philippines has essentially dealt a clever hand — China might have to clarify the extent and basis for its nine-dotted line claim.
This is something that many analysts have been calling for. Singapore's former senior minister S. Jayakumar said in 2011 that China should clarify its “puzzling and disturbing” nine-dotted lines map, since it had no apparent basis under Unclos and could be interpreted as a claim of all maritime areas within those lines.