is the subject of my Trade Tripper column in last Friday-Saturday's issue of BusinessWorld:
As much as we’d like to settle China’s territory
recognition disorder problem, there are certain things that simply
can’t be done. The complexity of the International Tribunal for the Law
of the Sea (ITLOS) dispute settlement system requires China to accept
our proposal to elevate the case to the ITLOS. Unlike domestic tribunals
which can acquire jurisdiction by mere service of summons,
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 state parties to the dispute
actually give their consent to be subjected to such jurisdiction. And
China pointedly rejected the jurisdiction of the ITLOS when it made the
following declaration upon joining the United Nations Convention on the
Law of the Sea (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.
It is pointless to say that the Philippines can go to the ITLOS by not
asking for the settlement of the territorial dispute but merely to
resolve maritime issues involving the waters under Philippine
jurisdiction. This is because, as alluded to above, the Chinese
rejection already covered even that: Article 15 (on the delimitation of
the territorial sea between opposing or adjacent coastal states);
Article 74 (on the delimitation of the exclusive economic zone between
such coastal states), and Article 83 (regarding the delimitation of the
continental shelf again between said coastal states). All three articles
fall under Article 298, paragraph 1.a referred to by the Chinese in its
declaration.
The phrase "compulsory dispute settlement procedures" is admittedly a
misleading term which has confused a lot of people. It is compulsory
because it refers a dispute to arbitration as the mandatory mode of
settling a dispute whenever the parties have not come to an agreement as
to what mode they have selected (the choices are the ICJ, ITLOS, or
arbitration). But this presupposes that the parties already agreed to
bring the matter to dispute settlement. Because despite the words
"compulsory" or "mandatory", the UNCLOS dispute procedure is still
consensual in nature. As we know already, the Chinese has refused our
invitation to bring the matter to dispute settlement under UNCLOS rules.
Arguably, there are possible areas where a "compulsory" or a unilateral
claim being made before the ITLOS could plausibly be argued. These are
those circumstances falling under Article 297, paragraph 1.c (i.e., "the
protection and preservation of the marine environment") or paragraph
3.a (i.e., "fisheries"). However, the same is not recommended, being
fraught with risks because a) it could potentially subject the
Philippines to an embarrassing international loss before an
international tribunal due to ignorance of international law, with the
residual effect of weakening our claim over the areas; and b) it makes
our DFA officials and the rest of government look as if they’ve been
remiss in their duties when actually they cannot proceed under ITLOS
rules because of China’s refusal. It also makes the country look like
it’s been sleeping on its rights, perhaps even estopped, if this were
true when clearly it’s not. Even calls for bringing China to ITLOS for
conciliation is misplaced because even at that level we still need
China’s consent. After all, even assuming we could properly unilaterally
bring the case to ITLOS, if China insists in refusing to join us there,
we would have no recourse to address such situation as contempt
measures or injunctions could not imaginably be issued and enforced
against China.
In this regard, like the ICJ or the GATT dispute system before the WTO,
the fount of knowledge for the ITLOS dispute settlement system is the
Registrar, for which it is recommended that it be consulted, not on
whether a case could be filed (the provisions itself are controlling),
but merely as to their opinion. It must also be considered that China
has a sitting member in the ITLOS: Zhiguo Gao. We don’t.
