HIGH STAKES: In its zeal to take on China's claims in the South China Sea, the Philippines has alienated itself
The official map of the Philippines labels the South China Sea as the West Philippine Sea and includes Sabah.
By initiating an arbitral proceeding against China, the Philippines
has upped the ante in the South China Sea. Manila says it is left with
no choice but to take Beijing to arbitration after exhausting all
remedies. However, many see Manila's action as a desperate act -- a
publicity stunt to regain international prestige following the
Scarborough Shoal fiasco in April last year.
Manila's request for an arbitral award opens up a can of worms,
especially when its Regime of Islands claim (to the Kalayaan Islands and
Scarborough Shoal) under its 2009 Baseline Law is contestable under
international law.
Incidentally, its new official map that has renamed the South China Sea
as the West Philippines Sea has re-incorporated Sabah, which is sure to
reopen old wounds.
People who live in glasshouses should not throw stones, as they will
expose not only the throwers' hypocrisy but also vulnerability.
No one doubts that Manila is fed-up with Beijing's intransigence.
Lately, the Philippines has mounted diplomatic and political offensives
in the South China Sea in a hope to get the United States and the
international community to sanction China. Unfortunately, following a
rebuff by Washington, the offensive failed to undermine China, the
Goliath who was close to former president Gloria Arroyo, now under house
arrest.
As a domestic political agenda, Manila's unilateral legal proceeding is
likely to be futile again. Its success record in international
arbitration has been dismal. For example in 1927, the US, acting on
behalf of Manila, failed to convince judge Max Huber that the island of
Palmas belonged to the Philippines. The judge awarded the ownership of
the island (now known as Miangas) to Indonesia, although the island is
within the 1898 Treaty of Paris Limits.
In October 2001, the Philippines sought permission to intervene as a
non- party in the case involving the sovereignty of Pulau Ligitan and
Pulau Sipadan. the International Court of Justice (ICJ) rejected (14 to
1) the request.
China, the world's second largest economy and a permanent member of the
United Nations Security Council, has said no to arbitration
proceedings. Without its consent, it is unlikely for the tribunal to
act; furthermore, the tribunal may lack jurisdiction to hear the case.
Manila has insinuated that Beijing can no longer hide behind its
declarations under Article 298 of the UN Convention on the Law of the
Sea (UNCLOS). In 2006, China declared, "it does not accept any of the
procedures provided in Section 2 of Part XV of United Nations Convention
on the Law of the Sea with respect of all categories of disputes...",
including sovereignty issues.
Manila says this proceeding against China is not over sovereignty. Yet, the notification statement implies the contrary.
Manila wants the proposed tribunal to determine the legality of China's
nine-dash line of 1948 and to determine the legal status of 10 features
that China has occupied in the South China Sea (mainly in the Spratlys)
as either "islands or rocks". These issues are jurisdictional in
nature. The nine-dash line relates to jurisdictional and sovereignty
issues.
The Philippines brings the case to the tribunal under UNCLOS. Those
familiar with jurisdictional claims in the South China Sea are aware of
the nine-dash line, published in 1948. This means the line has preceded
UNCLOS by thirty-four years; UNCLOS came into force in 1996.
The only way for UNCLOS to have jurisdiction over the case is to give
it a retrospective power, which arguably constitutes an abuse of rights
and goes against the legal principle of good faith (Article 300 of
UNCLOS).
The unfortunate omission of the applicable law under Article 38 of the
ICJ Statute in the notification statement has significantly weakened
Manila's position.
I also find it puzzling for Manila to ask the tribunal to "require
China to bring its domestic legislation into conformity with its
obligations under UNCLOS".
On the diplomatic front, Manila has garnered zero support from the claimant parties.
Their silence results possibly from disagreement with the manner the
Philippines handled a vital matter in the light of Statement on Asean's
Six Point Principles on the South China Sea of July 20 last year.
Moreover, Manila's objection in May 2009 to the Joint submission to the
UN Commission on the Limits of the Continental Shelf is still fresh in
the minds of Hanoi and Kuala Lumpur.
Is Manila telling the world that it has broken ranks with Asean?
The way forward is not to break ranks but to mend fences with China.
by Dr BA Hamzah New Straits Times
Related posts/articles:
Philippines wants rearmed Japan to contain China
Tensions in South China Sea: US won’t take sides...
Manila and ASEAN: Upping the ante on the South China Sea
Overhyping the South China Sea
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