Manila barking up the wrong tree

Also, the two sides should continue their consultations and dialogues on relevant issues through modalities to be agreed by them, including regular consultations on the observance of the Declaration. Seen in this light, the Philippines has violated the Declaration by moving the Permanent Court of Arbitration without seeking the consent of China.

Since Manila filed an arbitration case against Beijing without having fulfilled the mandatory requirements, the case falls beyond the jurisdiction of the arbitral tribunal. In the notification and statement of claim, the Philippines has listed 13 points, which can be translated into three general requests for the tribunal - to give a ruling on the maritime rights of China and the Philippines in the South China Sea that are established by the provisions of the Convention on territorial sea, contiguous zone, exclusive economic zone and continental shelf; to rule that China's nine-dash line violates the Convention and is invalid; and to adjudicate that China has unlawfully claimed maritime entitlements to the Meiji Reef, Huangyan Island and other islands in the South China Sea.

To determine the maritime rights of China and the Philippines in the South China Sea, it is necessary to first determine the territorial sovereignty over the disputed islands, in accordance with the basic principle of the law of the sea - that the land dominates the sea, meaning it is the territorial sovereignty of a coastal state that gives shape to its sovereign rights and jurisdiction over its territorial sea, exclusive economic zone and continental shelf.

Therefore, the core point of the dispute Manila has raised is actually the sovereignty over the disputed islands and demarcation of maritime rights, neither of which falls within the limited jurisdiction of the tribunal. This is because in August 2006, China submitted to the UN a formal statement in accordance with Article 298 of the Convention, clarifying that it does not accept any of the compulsory procedures provided for in Part XV of the Convention with respect to any dispute on territory, maritime delimitation and military activities referred to in Article 298.

Also, according to the same article, any dispute that necessarily involves the concurrent consideration of any unsettled dispute on sovereignty or other rights over continental or insular land territory should not be submitted to conciliation procedure under Annex V of the Convention.

International arbitration cannot resolve the territorial disputes in the South China Sea, including that between Beijing and Manila. They should be resolved through bilateral political and diplomatic channels. The Philippines has simply taken a wrong path in trying to push the arbitration forward.

The author is the director of the Center for China Marine Strategy Studies, Shanghai Academy of Social Sciences.

(China Daily 04/15/2014 page9)