The Philippines takes South China Sea dispute to UN tribunal
By Joseph Santolan
31 January 2013
http://www.wsws.org/en/articles/2013/01/31/phil-j31.html
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<http://www.japantimes.co.jp/opinion/2013/01/31/commentary/a-question-of-chinese-sovereignty/#.UQp0Rtw3dQo>
A question of Chinese sovereignty
BY MICHAEL RICHARDSON
JAN 31, 2013
SINGAPORE - When China ratified the United Nations law of the sea
treaty in 1996, it was hailed as an important step toward stability
and peaceful settlement of disputes in East Asia's vast, valuable but
conflict-riven offshore zone.
So the recent move by the Philippines to turn to the U.N. for a
ruling on whether China's sweeping claims to ownership and control
over nearly all of the South China Sea in the maritime heart of
Southeast Asia is in line with the 1982 treaty seemed like a
perfectly law-abiding step.
But China's Xinhua news agency said the Philippines' referring the
issue to a U.N. tribunal for compulsory arbitration was "Manila's
latest attempt to show its hardline position toward China" on their
territorial disputes in the South China Sea.
When Beijing ratified the treaty establishing the legal framework for
conduct in the world's oceans and seas, known by its full title as
the U.N. Convention on the Law of the Sea (UNCLOS), it registered
some points about the application of the treaty, as member states are
entitled to do.
Two of the points are relevant to the launch by the Philippines of
UNCLOS arbitration proceedings against China.
The first is that in ratifying UNCLOS in 1996, China reaffirmed
sovereignty over all its archipelagos and islands listed in Article 2
of a 1992 law adopted by the National People's Congress, China's
legislature. This law on the territorial sea and the contiguous zone
states that the land territory of China includes the mainland, its
coastal islands, and some other groups of islands.
Those enumerated in the last category are Taiwan (which China regards
as a rebel province) and the nearby Diaoyu (Senkaku) Islands in the
East China Sea. The Senkakus are administered by Japan but bitterly
contested by China.
In the South China Sea, the islands belonging to China under the 1992
law are, from north to south, the Dongsha (Pratas) Islands, occupied
by Taiwan; the Xisha (Paracel) Islands, occupied by China but claimed
by Vietnam; the Zhongsha (Macclesfield Bank) Islands; and the Nansha
(Spratly) Islands, over which China, Taiwan, Vietnam, the Philippines
and Malaysia have conflicting claims.
The second point registered with UNCLOS by China came 10 years later,
in 2006, when Beijing gave notice, as it was entitled to do, that it
did not accept any international court or arbitration in disputes
over maritime boundaries, islands or military activities.
China's position is that this is a question of Chinese sovereignty,
not international law of the sea, and that the former, established
for centuries by prior occupation and administration, must take
precedence over the latter.
In April last year, as China and the Philippines struggled for
control of Scarborough Shoal anchorage and fishing grounds, which
Manila says is within its Exclusive Economic Zone established by
UNCLOS, a Chinese Embassy spokesman Zhang Hua acknowledged that the
treaty allowed countries EEZs but said that they could not exercise
sovereignty over areas within those waters that were owned by other
countries, in this case China.
Scarborough Shoal is some 870 kilometers from China's Hainan Island
province, its closest uncontested territory in the South China Sea.
The shoal is just 230 km from the main Philippine island of Luzon.
Beijing ignores the fact that no other country recognizes its South
China Sea claims, although Taiwan maintains a similar position in its
East and South China Sea claims to those of Beijing.
In 2009, China sent a letter to U.N. Secretary General Ban Ki Moon
saying that it had "indisputable sovereignty over the islands in the
South China Sea and the adjacent waters, and enjoys sovereign rights
and jurisdiction over the relevant waters as well as the seabed and
subsoil thereof."
Attached to the letter was a map showing the extent of China's claim
in the South China Sea, marked by a nine-dash line stretching as far
south as James Shoal, just 80 km from Bintulu, in the Malaysian state
of Sarawak, and about 1,800 km from the Chinese mainland.
A Xinhua report in April 2012 described the shoal as "the
southernmost point of China's territory."
China's use of its nine-dash claim to support its sovereignty claims
in the South China Sea, and its references to "historic rights" in
waters inside this imprecisely defined line, have provoked
controversy and given Southeast Asian claimants the opportunity to
argue that China is not acting in conformity with UNCLOS and
international law.
In its Jan. 22 appeal to the U.N., the Philippines asserted that
China's maritime claims in the South China Sea within its nine-dash
line map were contrary to UNCLOS and invalid. It is also asked for a
ruling that China bring its domestic law into conformity with its
obligations under UNCLOS, and that Beijing desist from activities
that violate Philippine rights in its maritime domain.
Julian Ku, a law professor in the U.S., who follows the issue
closely, described Manila's case as the most important ever to have
been filed under the dispute resolution procedures of UNCLOS. "I
don't think that the Philippines has a hopeless case, but I do think
they will face a huge challenge to get any arbitral tribunal to
assert jurisdiction here, especially since one judge will be
appointed by China," he wrote.
Ku added that if Manila managed to get past the jurisdictional
hurdle, it would have "a very good chance of prevailing since China's
claim is hard to square with the rest of UNCLOS."
UNCLOS defines the rights and jurisdiction of China in maritime zones
subject to its sovereignty, namely its internal waters and
territorial sea, a belt stretching out nearly 19 km from its coast.
The treaty also defines China's authority in maritime areas that are
outside its sovereignty, including the EEZ, high seas, contiguous
zone, continental shelf and the deep seabed - zones that can stretch
370 km or more from the coast. Yet in its 2009 letter to Ban, Beijing
appeared to be claiming sovereign rights over this second category of
maritime areas in the South China Sea, contrary to UNCLOS.
Only predominantly island nations, such as the Philippines and
Indonesia, are recognized by UNCLOS as archipelagic states. The
waters linking their islands fall within their sovereignty, but even
this is subject to certain defined limits. Is China planning to
become a latter-day archipelagic state based on its offshore island
claims, by far the most extensive of which are in the South China Sea?
One thing is certain. China plans to reinforce its already
substantial body of domestic law on its claimed maritime and offshore
island rights.
Xinhua reported on Dec. 28 that China was likely to enact its first
law on the exploration, development and management of deep sea
resources within five years, as part of its policy to "resolutely
safeguard maritime rights and build itself into a maritime power."
The official news agency said that international seabed areas refer
to the ocean floor and subsoil below the high seas, or waters beyond
the limits of any national jurisdiction. It added that such areas
were believed to be rich in strategic resources, including minerals,
natural gas hydrates and biological resources.
Michael Richardson is a visiting senior research fellow at the
Institute of South East Asian Studies in Singapore.
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