Q&A: South China Sea Dispute

Recently, there is a debate raised up on Facebook between young Chinese and Filipino about South China sea dispute. It is not the first time young adults from different countries abusing each other verbally with hatred. I really don’t understand why do people so obsessed with political row, so I decided to make a Q&A to the South China Sea dispute to make it clear what was going on.

Q1: Why did Philippines decide to take China to the court of arbitration?

In January 2012, China imposed fishing permits in the South China Sea. These permits were imposed in waters that are inside The Philippines’ Exclusive Economic Zone, as defined in Article 55 of the Convention on the Law of the Sea, which we have both signed and ratified, so China’s actions in this regard are unlawful. Philippines was obviously displeased with this action, but when the Chinese Coast Guard then expelled two of our ships from within our own Exclusive Economic Zone, we could no longer accept this. At this point Philippines decided to pursue arbitration under article 287 of the Law of the Sea convention, as the most appropriate means of peacefully resolving the dispute.

Q2: What’s China’s response to Philippines’ decision by seeking international arbitration to settle a dispute in the South China Sea (SCS)?

Beginning from the 1970s, the Philippines illegally occupied islands and reefs of China’s Nansha Islands. The Philippines’ illegal occupation of these Chinese islands and reefs is the root cause of the South China Sea dispute between the two countries.

As early as in 2006, China submitted a written statement to the United Nations Secretariat, clearly declaring that, on issues of territorial sovereignty, marine demarcation, and military activities, China refuses to accept any jurisdiction of international justice or arbitration as stipulated by section 2 of part XV of the United Nations Convention on the Law of the Sea (UNCLOS). The arbitration raised by the Philippines is in essence dispute concerning the sovereignty over the islands and reefs and demarcation over certain waters in the South China Sea.

In addition, The Philippines had made obvious mistakes in the application of dispute settlement processes of the general international law and the UNCLOS. First, sovereignty of islands is not related to interpretation of application of the UNCLOS. State parties should not submit arbitrations in the procedure of the UNCLOS. Second, Article 298 of the UNCLOS gives the state parties right to rule out a dispute of the maritime demarcation from the judicial process under the UNCLOS. Based on the rules above

Q3: China has asserted the tribunal has no jurisdiction over the case because it is a matter of who has sovereignty over the islands. Is this not a valid argument against proceedings?   

Even in the event of there being an argument questioning the tribunal has jurisdiction, article 288(4) of UNCLOS provides that, if there is a dispute as to whether a tribunal has jurisdiction, the matter is to be settled by that tribunal. China made a declaration on 25 August 2006 pursuant to Article 298 indicating that it does not accept any international judicial or arbitral jurisdiction provided for in Section 2 of Part XV of UNCLOS with respect to disputes referred to in Article 298, paragraph 1(a), (b), and (c) of UNCLOS (e.g., those related to maritime boundary delimitation, territorial disputes, or military activities). However, the tribunal noted the Philippines is seeking not a determination of which party has sovereignty over the islands claimed by both of them or to delimit any maritime boundaries between them in the South China Sea, but to declare that China’s maritime claims based on the dotted line violate the Philippines’ entitlements to the maritime spaces, or that China has illegally interfered with the Philippines’ right of navigation in the South China Sea. Article 297(1)(a) and (b) of UNCLOS provides that disputes concerning rights of navigation or domestic laws or regulations compatible with UNCLOS “shall be subject to the procedures provided for in section 2.” Thus, China’s Article 298 Declaration will not result in the invalidity of the tribunal’s jurisdiction.

To sum up, the Philippines decided to pursue arbitration under article 287 of UNCLOS to try to resolve the dispute between the two parties. While China responded that article 298 of UNCLOS gave states right to rule out a dispute of the maritime demarcation from the judicial process. In 2006, China indicated that they do not accept any international judicial or arbitral jurisdiction that is noted in Section 2 of Part 15 of UNCLOS, this section covers maritime boundary delimitation, territorial disputes or military activities. Both arguments are sound, but political disputes always connect to the national interest, which means they won’t compromise. If you care about your country that’s good, but if it’s necessary to abuse each other online when people have yet to understand the truth and the solution?

More readings:

http://www.bbc.com/news/world-asia-21163507

http://www.bbc.com/news/world-asia-27724283

http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

http://thediplomat.com/2014/06/china-philippines-duel-over-a-south-china-sea-code-of-conduct/

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