is the subject of my Trade Tripper column this Friday-Saturday issue of BusinessWorld:
We do not wish to increase tensions with anyone, but we must let the world know that we are ready to protect what is ours. We are also studying the possibility of elevating the case on the West Philippine Sea to the International Tribunal for the Law of the Sea, to make certain that all involved nations approach the dispute with calm and forbearance. -- President Benigno Simeon C. Aquino III, 2011 State of the Nation Address
The International Tribunal for the Law of the Sea (ITLOS) was created under the provisions of the Third United Nations Conference on the Law of the Sea, the latter taking effect on Nov. 16, 1994. The ITLOS, based in Hamburg, is entrusted with settling disputes among its 161 parties, with the Philippines being a party on May 8, 1984 and China on June 7, 1996.
So far, 19 cases have been submitted to the ITLOS, the first being the 1997 M/V "SAIGA" Case (Saint Vincent and the Grenadines v. Guinea) case. ITLOS’ most famous case, however, is the Southern Bluefin Tuna Case. It involved the request of Australia and New Zealand for provisional measures against Japan to preserve the population of Southern Bluefin Tuna. In the end, provisional measures were granted, the ITLOS noting that "there is no disagreement between the parties that the stock of Southern Bluefin Tuna is severely depleted."
There is no question, therefore, about the respect which the ITLOS holds in the world of international dispute settlement. The problem here is the complexity of its dispute settlement system and the State sovereignty aspects of ITLOS’ jurisdiction. The ITLOS potentially has jurisdiction over "all disputes and all applications submitted to it in accordance with the Convention. It also includes all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal (Statute, article 21). The Tribunal has jurisdiction to deal with disputes (contentious jurisdiction) and legal questions (advisory jurisdiction) submitted to it." "Contentious jurisdiction" refers to "disputes concerning the interpretation or application of the Convention, subject to the provisions of article 297 and to the declarations made in accordance with article 298 of the Convention."
Specifically, this refers to "jurisdiction over any dispute which is submitted to it in accordance with Part XV of the Convention concerning the interpretation or application of the Convention (Convention, article 288, paragraph 1; Statute, article 21) and the Agreement relating to the Implementation of Part XI of the Convention." Parties may, however, refer by agreement a dispute that falls under Articles 297 and 298 of the UNCLOS. Under Article 288, paragraph 2, of the UNCLOS, the ITLOS has jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the UNCLOS.
Furthermore, as I wrote a couple of weeks ago, China has to accept the proposal to elevate the case to the ITLOS. The reason is that, unlike domestic tribunals which can acquire jurisdiction by mere service of summons for example, international tribunals operate within the constraints of State sovereignty. In other words, the only way an international tribunal can have jurisdiction over the case is if the States parties to the dispute actually give their consent to be subjected to such jurisdiction. And China has pointedly rejected the jurisdiction of the ITLOS when it made the following declaration upon joining the UNCLOS: "The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention."
China’s reference to Article 298 means that "it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes": disputes concerning the interpretation or application of articles 15, 74, and 83 relating to sea boundary delimitations, or those involving historic bays or titles; disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297; and disputes in respect of which the Security Council of the United Nations is exercising its authorized functions, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in the UNCLOS.
All the foregoing becomes more interesting when we consider the fact that China has a sitting member in the ITLOS: Zhiguo Gao, and we don’t (although we would be entitled to appoint an ad hoc judge should the case indeed reach the ITLOS). So, regardless of Philippine good intentions, the bottom line still is China’s sincerity to have the Spratlys issue resolved in peaceful and just manner.