Ambassador Jaime S. Bautista, Doctor of Laws
THE
ARBITRATION CASE FILED BY PH AGAINST CHINA AFFECTS ALL COUNTRIES, WHETHER
COASTAL OR LAND-LOCKED
The
cataclysm wrought by the tsunami-like waves of super-typhoon “Haiyan” has
touched people from all over the world.
Nature’s fury has once again humanized mankind. The warships of nations who fought in the decisive
Battle of Leyte are now converging at this island, to cooperate and provide
humanitarian relief.
In
times of great human suffering, it is not timely to write about discord, but to
reflect on goodwill and understanding. In
this context, I write about the arbitration requested by the Philippines for
the peaceful resolution of its dispute with China in the West Philippine Sea.
The
Philippines brought this request for arbitration in accordance with Chapter VI
of the UN Charter entitled “Pacific Settlement of Disputes”. Article 33, Paragraph 1 thereof provides:
“The Parties to any dispute, the continuation of which is likely to endanger
the maintenance of international peace and security, shall first of all, seek a
solution by negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice.”
The
Philippines has chosen to bring this arbitration before the International
Tribunal of the Law of the Sea (ITLOS), in accordance with the provisions of
Part XV of the UN Convention of the Law of the Sea (UNCLOS) entitled:
“Settlement of Disputes” since the dispute has been the subject of good faith
negotiations between the Philippines and China since 1995.
If
the Philippines should win the case, China should be expected to comply with the
arbitral decision of ITLOS established under UNCLOS. China has treaty obligations as a Party to UNCLOS
and is not only a member of the United Nations but also a Permanent Member of
the UN Security Council. The Philippines
does not stand alone on the issues before ITLOS and expects international law
to be respected.
The
arbitration case raises issues affecting all the countries of the world, both
coastal and land-locked.
According to the Philippines’
Notification for Arbitration, China claims “sovereignty” or “sovereign rights”
over some 1.94 million square kilometers, or 70% of the South China Sea’s
waters and underlying seabed within its so-called “nine dash line.” Unless China retreats from this position, China
would be claiming “sovereignty” or “sovereign rights” over part of the high
seas as well as part of the Area defined
in UNCLOS as the seabed and ocean floor and subsoil thereof beyond the limits
of national jurisdiction. The Area
and its resources, according to Articles 136, 137 and 140 of UNCLOS, are
the common heritage of mankind and
cannot be claimed or appropriated by any State but are vested in mankind as a
whole, irrespective of the geographical location of States, whether coastal or
land-locked, and taking into particular consideration the interests and needs
of developing States.
China’s
“nine dash line” also raises the issue of freedom of navigation in the high
seas, which affects
all
maritime and trading nations, including the other Permanent Members of the UN
Security Council.
All
states expect international law to be respected, especially
by those aspiring to be a leader of the international community. There are great costs to those states who
violate treaty obligations of a fundamental nature entered into by the great
majority of States.
