THE Chinese Ambassador to Malaysia has written a well-argued commentary on developments in the South China Sea, “The way of amicable consultations” (The Star, June 13). I wish to lay out certain views on this matter to give readers a balanced and informed perspective.
Negotiations and consultations between parties directly involved is usually the best way to resolve issues, as the ambassador rightly points out. This is true for individuals, companies and countries as well. For the longest time, this has been the approach pursued by the Philippines and Asean, and China too, with respect to differences in the South China Sea (SCS).
Time and again, all sides have committed themselves to the full and effective implementation of the 2002 Declaration on the Conduct of the Parties in the South China Sea (DOC), and to work expeditiously on the conclusion of a legally-binding Code of Conduct (COC). While all profess adherence to international law, notably the UN Convention on the Law of the Sea (Unclos), there are fundamental differences in interpretation.
The littoral states – Vietnam, Malaysia, Brunei and the Philippines – are anxious about China’s assertion of its nine-dash line claim, which encompasses some 80% of the SCS, and puzzled about its legal and factual basis. All four would lose large swaths of exclusive economic zones (EEZ) guaranteed them under Unclos, and have fervently asked China for clarification. There has also been no appreciable progress towards the adoption of the COC after some 14 years.
Sadly, the response has been the often-repeated reiterations of China’s “indisputable sovereignty” over these waters, among others, which makes discussions slow and often frustrating. As noted by numerous observers, including Sumathy Permal of the Maritime Institute of Malaysia in response to the ambassador’s commentary, “the major concern is the slow progress on adopting a code of conduct in the SCS and the lack of functional cooperation.”
Clarification on these vital issues by an impartial tribunal composed of experts is thus not only useful but also necessary.
The decision by the Philippine Government to file an arbitration case before an arbitral tribunal under Unclos was not taken lightly as the country values its relations with China. It came about only in April 2012 when the Chinese coast guard excluded Filipino fishermen and Philippine authorities from the Bajo de Masinloc/ Scarborough Shoal, which is located 124 nautical miles (NM) off Zambales province (and 472 NM from the nearest Chinese coast) and well within the Philippines’ 200 NM EEZ.
The Philippines has sought to negotiate and peacefully settle issues with China in the SCS since the Panganiban/ Mischief Reef incident in 1995. In addition, the Philippines and China have had more than 50 bilateral talks at various levels since the Bajo de Masinloc/ Scarborough Shoal stand-off in 2012, all to no avail.
The case was filed with a view to resorting to a process which is open, transparent, friendly and fair. It is also sanctioned under Unclos, the Constitution of the Oceans, to which almost all
countries including the Philippines and China are signatories. Arbitration is among the legal and diplomatic processes pursued in promoting the rule of law in the region.
Many aspects of the case are highly technical and best left to experts, but some aspects are worth noting.
Philippine lawyers have not asked the tribunal to make a ruling on who occupies or have sovereign rights over islands, rocks or reefs in the SCS, but merely to make a determination on the status and entitlements of certain of these features, i.e., whether entitled to a 12 NM territorial sea, 200 NM EEZ or none at all. In other words, the case is not a territorial issue but a maritime one.
China was also invited to participate before the actual hearings commenced, and again asked for its views or submissions as the proceedings progressed. As a reflection of the proceedings’ transparency and fairness, a number of interested countries, notably Indonesia, Vietnam, Thailand, Singapore, Japan, Australia and Malaysia, sent observers. Vietnam also made written submissions to the tribunal. As noted by Indonesian analyst Haryo Budi Nugroho in “How arbitration can benefit China” (The Star, June 16), “the arbitration has actually acted fairly and impartially.”
Arbitration and judicial settlement is nothing new, not least to countries in our region. Malaysia and Singapore earlier asked the International Court of Justice (ICJ) to decide on contending claims over Pulau Batu Puteh/ Pedra Branca in the Straits of Malacca.
The ICJ was similarly asked by Malaysia and Indonesia to resolve the Pulau Ligitan/ Pulau Sipadan issue in the Sulawesi Sea. The Temple of Preah Vihear issue between Cambodia and Thailand was resolved by the ICJ. Malaysia brought Singapore to arbitration over the latter’s land reclamations in the Straits of Johor before the Permanent Court of Arbitration at The Hague, under whose auspices the current SCS case is being heard.
Other disturbing developments have taken place in recent years. The current apprehension is whether or not China will continue its frenetic island-building activities and construct one in the Bajo de Masinloc/ Scarborough Shoal and declare an Air Defense Identification Zone (ADIZ). These will degrade the region’s delicate ecosystem, impede the flow of commerce in one of the world’s busiest waterways, hinder freedom of navigation and overflight, and lead to further tension and instability in the region and beyond.
As a good citizen of the community of nations, the Philippine Government has said that it will abide by the ruling of the arbitral tribunal whether it wins or loses. It behooves China to do likewise and conform its actions within the bounds of international law and norms. Under Unclos, an impleaded party is bound by a tribunal’s ruling whether it participates or not.
Like all other countries, the Philippines welcomes and is supportive of China’s rise and growing prominence in regional and international affairs. Continued growth of its economy is beneficial to its neighbours and partners. It would not be advisable for China, as a leading member of the international community, to pick and choose provisions of international law and norms favourable to it at a given time, and to seek exemption from them at other times.
President-elect Rodrigo Duterte (pix, with Chinese envoy Zhang Jianhua) has expressed openness to engaging China, including on a bilateral basis, to address these issues. The arbitral ruling will bring about much-needed clarity to these complex matters. After all, the SCS issue is not the sum total of Philippine-China relations. People-to-people engagement remains particularly strong.
J. EDUARDO MALAYA
Ambassador of the Philippines to Malaysia
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