Authors: Dhruv Yadav and Ankit Malhotra
It is common knowledge; when stakes are high and stakeholders are many, disputes are bound to happen. Hence, the creation of an overarching dispute mechanism forum thus becomes the need of the hour. International law and more specifically United Nations Convention on Law of the Sea (Convention) an attempt on the international regime at ensuring peaceful dispute resolution. The Tribunal for the Law of the Sea created as per the provisions of Convention underpins the “importance and obligation to settle disputes by peaceful means, as enshrined in the United Nations Charter and part of customary international law, this obligation to settle disputes by peaceful means and ruling out forceful means as a particular course for dispute settlement.”[1]Dispute settlement is based on the principle of consent. The Convention is one such dispute settlement body. Furthermore, Part XV allows states to choose between previously agreed between the parties for different law of the sea disputes. If, and, like China, “a party does not arrive at a settlement then one state may refer the dispute to compulsory procedures entailing binding decisions, allowing for either arbitration or adjudication, per Section 2 of Part XV.”[2]The resort to arbitration is restricted by Section 3 of Part XV, which excludes the compulsory procedures for a particular set of disputes allows States with the option of excluding certain categories of following Article 298 of Convention. Hence, “the Convention dispute settlement regime is not comprehensive as a result, because not every law of the sea dispute that concerns the interpretation or application of Convention can be referred to compulsory procedures entailing binding decisions. Yet it provides states with important flexibility in how disputes are settled and this flexibility ensures the ongoing feasibility of the dispute settlement regime.”[3]Which, as China has, completely denied any means of dispute settlement which furthermore increased tensions in the region resulting in a deadlock and power struggle in the region?
The Philippines issued proceedings against China under Part XV of the Convention on January 22, 2013. The Philippine’s made multiple claims. Firstly, they requested the halt of the Chinese’s expansive ‘nine-dash line’[4]. Before moving any forward it is important to explain the relationship between a state’s historic rights and Convention since historic waters and its roots are historic reality. States throughout the ages asserted and maintained power over oceanic zones which they considered essential to them without giving careful consideration to different and changing sentiments about what general universal law may recommend as for the delimitation of the regional ocean. Historic waters’ have their roots and inheritance in history. Countries through the ages claimed and maintained sovereignty over maritime masses which they considered of supreme importance to themselves without noticing the divergent and changing opinions of the International Law. Thus, the case at hand provides a good example of the importance of Customs with regards to International Law. This fact had to be taken into consideration when attempts were made to codify the rules of International Law in this field, i.e., to reduce the obscure and contested rules of customary law to clear and generally acceptable written rules. Lawmakers, at the time, rightly felt, the State will not feel obliged to obey such rules and it might be construed as them being deprived of their rights, which they very much enjoyed throughout history.
The Philippines argued that “such a line is in contravention of the provisions of Convention in the allocation of maritime space, including a territorial sea, continental shelf and exclusive economic zone (EEZ).”[5]Secondly, the Philippines expressed their concern towards the Spratly Islands and the Scarborough Shoal. The Philippines did not question the sovereignty but sought clarification of the nature of the Islands. This was done to determine their status in a legal paradigm and to determine the boundaries, literally and figuratively.
Thirdly, The Philippines claimed that China was unlawfully occupying the Philippine “Territorial Sea”[6]thereby denying the Philippines Rights to Explore and Exploit living and non-living resources in maritime areas over which the Philippines claims exclusive sovereign rights as well as its rights of navigation in the contested area.[7] Illegally exploiting resources of another’s land isa clear violation of the International Law of the Sea.
China, on the other hand, refused to participate but issued a “position paper” [8] arguing that, the Philippines may not unilaterally commence arbitral proceedings against China because there is a binding obligation on the two countries to settle disputes relating to the South China Sea through negotiations. China points to a series of joint statements, as well as a “2002 Declaration on the Conduct of Parties in the South China Sea”[9] which binds signatories to settle disputes through negotiations; “such an obligation would prevent jurisdiction for compulsory procedures entailing binding decisions from arising, according to China.”[10]China strongly affirms that irrespective of the arbitration ‘farce’ that continues to play out, China’s sovereignty over the South China Sea Islands “brooks no denial.”[11]In addition to that, the Chinese added that, the Arbitration initiated by the Philippines has disguised the dispute into an ‘interpretation and application of the Convention’s and that once the disguise is removed, all will know the provocation under the cloak of law. In other words, according to the Chinese, the ulterior motive of the Philippines is to snatch China’s territory through a farce.
In protest, the Chinese are adamant to negate any claims against China’s sovereignty, rights and interests through a so-called “arbitration-award because that will be nothing but wishful thinking, just like flowers in a mirror and reflection of the moon in the water. By going back on its own words and confusing the concepts for territorial expansion, the Philippines will only end up bringing disgrace on itself.”[12]
With regards to the international law and its adherence, international disputes are politicized at domestic levels nation-states do not want to compromise or appear to have compromised to another party’s contentions. One of the mainstream criticisms of international law which talks about the question of conflicting sovereignty can be observed in the South China Sea conflict. It has been contended by legal theorist like John Austin who shamed international law and based higher value on ethics and morality in comparison to legal principles. According to Austin, in cases of conflict between states, international law tries to suppress the use of military might by the superior state. However, the refusal of one of the parties to abide by the said laws does not or cannot have serious repercussions. The sovereignty of a nation remains intact so long as it is not forced to abide by laws from a foreign authority.This, According to Austin, creates a conflict or a paradox in International Law.
Inspired, motivated and in consonance with Austin’s writings, China has raised her contentions along such lines of reasoning where it claimed “historic rights” over the South China Sea and put forward the view that the Philippines had consented to dispute resolution employing negotiation in a series of joint statements which had been bilaterally accepted by both the parties and that Article 281 cannot be attracted in such cases. Thus, from the very start, China went against the initiation of the Tribunal arbitration under Annex VII. Thereby creating a lacuna and highlighting the problems with International Law. Neither the Convention nor the UN Charter specifies what “peaceful means” of dispute resolution are. International Laws are based on consent and a contention overlap of principles of sovereignty. Thus, manifesting and personifying the dispute into realms beyond and purely of law.
In disputes such as the South China Sea conflict, China has raised its contentions along such lines of reasoning where it claimed “historic rights” over South China Sea. Furthermore, China put forward the view that the Philippines had consented to dispute resolution employing negotiation in a series of joint statements which had been bilaterally accepted by both the parties and that Article 281 cannot be attracted in such cases. Hence, rendering the use of the Law of the Sea Tribunal as inconsequential and against the agreed terms. Although, the employment of historical claims in the South China Sea has become increasingly relevant to the debate over sovereignty and the occupation of uninhabitable islands in the region. The lack of legally legitimate historical claims to South China Sea islands (beyond the trade routes argument) leaves the Chinese perspective with no legal standing under international law. With each state using its narrative to support their claims, there is little chance for historical and factual reconciliation – making the historical realities and claims of China crucial to the understanding of the current status of the region.
In conclusion, it can be said that all international disputes are politicized at domestic levels and the nation-states, generally speaking, do not want to compromise or appear to have compromised to another party’s contentions. One of the mainstream criticisms of International Law discusses as is also discussed in the essay is, the question of conflicting sovereignty claims in the South China Sea conflicted region. It has been contended by certain writers on legal theory like Austin that international law is based more on ethics or morality than on legal principles. In cases of conflict between states, international law tries to suppress the use of military might by the superior state. However, the refusal of one of the parties to abide by the said laws does not or cannot have serious repercussions. The sovereignty of a nation remains intact so long as it is not forced to abide by laws from a foreign authority. This creates a conflict or a paradox in International law consequentially leading to the total disregard of the Law itself.
[1]Klein, Natalie, The Limitations of ConventionPart XV Dispute Settlement in Resolving South China Sea Disputes: The South China Sea – An International Law Perspective Conference (March 9, 2015). International Journal of Marine and Coastal Law, June 2016. Available at SSRN: https://ssrn.com/abstract=2730411
[2]Convention(n 1), art 286. States have a choice of procedure as between arbitral tribunals, the International Court of Justice and the International Tribunal for the Law of the Sea. Arbitration is the default procedure subject to the choices made by states. See Convention(n 1), art 287.
[3] Pt. 2
[4]Derived from a 1947 map drawn by Yang Huairen, a geographer for the Nationalist Government that fell in 1949. Yang’s work consisted of 11 dashes that were located in slightly altered locations.
[5]Convention(n 1), Annex VII, art 9.
[6] Part 2 of the Convention
[7] Notification and Statement of Claim on West Philippines Sea, 22 January 2013, available at file:///D:/Users/mq20046045/Downloads/Notification%20and%20Statement%20of%20Claim%20on %20West%20Philippine%20Sea%20(1).pdf
[8] ‘Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines’, Ministry of Foreign Affairs of the People’s Republic of China, December 7, 2014; available at http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml
[9] Declaration on the Conduct of Parties in the South China Sea, Adopted by the Foreign Ministers of ASEAN and the People’s Republic of China at the 8th ASEAN Summit in Phnom Penh, Cambodia on 4 November 2002; available at http://www.aseansec.org/13163.htm
[10] Ibid pt 2
[11] People’s Daily: China’s sovereignty over South China Sea islands brooks no denial, http://ca.china-embassy.org/eng/zt/cpot/t1327098.htm Accessed on 25 Ocotber 2019.
[12] Ibid pt 16
