ITLOS and the Scarborough Shoal

Now that Secretary Albert Del Rosario shares my view that the Scarborough Shoal dispute should be submitted to the International Tribunal on the Law of the Sea (ITLOS) for peaceful resolution, the question is: how could the tribunal exercise jurisdiction without China giving its consent to do so?

The answer lies in the dispute settlement procedure of the United Nations Convention on the Law of the Seas (UNCLOS). These provisions are not only very long, but are recognized by scholars as amongst the most complicated provisions of the convention.

In a nutshell, the provisions on dispute settlement were made part of the “package deal” that state parties agreed to be bound when they became parties to the UNCLOS. In an effort to make all of the provisions of the UNCLOS a restatement of customary international law, each and every provision of the convention were agreed upon by states on the basis of consensus, and not just by a vote of the majority. Consequently, not only did the UNCLOS become the longest treaty to negotiate, it also became unique because of the rule that parties thereto may not make reservations on any of its provisions, including those dealing with dispute resolution.

The ITLOS jurisdiction was made compulsory and mandatory on all state parties in all disputes arising from the “”interpretation or application of any provision in the Convention”. Because state parties to the Convention, including the Philippines and China, have already referred to the ITLOS these types of disputes, China need not give its consent anew if we were to bring the issue of the exercise of sovereign rights in Scarborough shoal, Recto Bank and even parts of the Spratly’s to the tribunal.

Notice though that while Scarborough dispute, because it is one over fishing rights in maritime territory may- be brought to the ITLOS even without the consent of China, the Spratly’s controversy, on the other hand, would still require China’s consent. The reason is simple: because the Scarborough issue is purely a dispute involving water, it may be resolved wholly under the UNCLOS and as such, is an issue arising from an “interpretation” of the Convention’s provisions on sovereign rights. By definition, sovereign rights refer to the exclusive right of a state to explore and exploit all natural resources found in the waters of its Exclusive Economic Zone (EEZ), which is 200 nautical miles from the baseline of a country.

The issue in Scarborough is whether fishing by Chinese nationals there violates the sovereign right of the Philippines to exclusively engage in fishing in the area. A resolution of this issue would require the ITLOS to make a factual determination if the shoal is within the country’s EEZ and whether the shoal, as China claims, is an island. If it were indeed an island, yet an issue to be resolved would be whether it is entitled to other maritime zones or just a 12 nautical mile territorial sea. In either case, the primordial issue would be which nation should be allowed to fish in the area of the disputed shoal.

The Spratly’s dispute, on the other hand, is one that involves conflicting claims to both land and water territory. As such. UNCLOS cannot be the sole applicable law for the obvious reason that it deals only with maritime territories. The territorial dispute to the islands are subject to the rule they should pertain to the state that can prove a superior claim in terms of effectivities, or the exercise of the rights and obligations borne out of the exercise of sovereignty over disputed land territory. As such, disputes over islands are disputes beyond the “interpretation” of the UNCLOS rules on maritime territory. This is why China must consent anew to the exercise of jurisdiction by ITLOS in resolving the Spratly’s dispute. It is because conflicting claims to land territory do not involve issues of interpretation of the UNCLOS and are hence, are not subject to the mandatory and compulsory jurisdiction of the ITLOS.

Recent events have proven that we are no match to China in terms of military firepower. It was fool hardy for Filipino policy makers to think that BRP Gregorio Del Pilar, our one and only battleship, can drive Chinese fishermen away from the area. In any case, resort to the use of force to settle international disputes are prohibited by both the UN Charter and the UNCLOS. I am happy that Secretary Del Rosario has finally declared that instead of a military solution, we have opted for a peaceful and legal resolution of the dispute. In this manner, we may yet repeat the feat of a boy named David that slew a giant named Goliath.

(Published in the Manila Standard Today newspaper on /2012/April/19)

15 comments on “ITLOS and the Scarborough Shoal

  1. aaron legaspi says:

    Mr. Harry- Spratly and Scarborough are both island/s as far as common sense and china is concerned. Since the pinoys are not in full physical possession of these islands plus the fact that our neighboring countries know that we have near zero armed forces capability for war we are bound to lose all of them. Is it true that even the malaysians are now claiming part of Spratly?

  2. asb says:

    Prof, what if the tribunal ruled that the dispute should be resolved bilaterally? to me that is almost the same as a chinese victory because we have no bargaining power. the way i see it, we still need to strengthen our maritime forces so we can protect what we already have. your thoughts?

    • harryroque says:

      Correct po kayo dyan. I’ve been reading the UNCLOS htough and it seems that we can invoke the compulsory and mandatory jurisdiction of the tribunal

  3. In order to fully asserts our claims on the scarborough shoal we must still need first to fully determine what kind of mass category it is, is it an island or just merely a rock for us to be able to bring it to the international court even without chinas consent.

  4. ernesto rosales says:

    for the past decades of leadership in our country its clear to me that our maritime territory has not been seriously given much attention rather our politicians were busy of their tasks to stay in power. Now that the aggressor are here poaching our maritime resources and if the peaceful means broke the nearest the govermment can do is through bilateral cooperation between our country and china. Is the chinese can be trusted.?

  5. Ricardo says:

    Has the DFA already filed a complaint to UN or ITLOS?

  6. kim abellon says:

    Hi Atty. Roque, i’m kim abellon, a student from st. scholastica’s college manila. I watched the forum last Friday in our Social Hall in where you spoke about the Scarborough Shoal. Thank you for giving an eye opener talk to us college students about the issues regarding the Scarborough Shoal and in what ways we can support our country. Thanks so much!!!

  7. hi atty.Roque.. Im a political Science student in Arellano..and im making my thesis about the dispute b/w Phil and China through legal and political perspective on Sovereignty over Scarborough Shoal..can u please help me sir..

    • harryroque says:

      ok. what do you need?

      • Ney says:

        sir..the strategical value of that two countries. the new militaristic and political will of the Philippines and China……..additionally sir, i have a question sir. the question goes like this,Should U.S intercede in behalf of the Philippines regarding on its commitment under the Mutual Defense Treaty (MDT)latest view–
        and Can the influenced of the U.S in the Southeast Asia and South China Sea impede the belligerent political perspective of Republic of China in South China Sea?
        -you can.send me a message my yahoo.

        tnx sir..more power and GOd bless.mabuhay and Pilipinas.

      • harryroque says:

        US has said that MDT is not triggered by military attack in the West Philippine Sea

  8. Mhadz says:

    Hi Atty Roque, if its okaayy sir can i have a copy of your facts about scarborough shoal? please sir just sen it on this email

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