The arbitration initiated by the Philippines against China impugning
the validity of China’s nine-dash lines appear to be on track. Last
week, pursuant to the UN Convention on the Law of the Sea, the
Japanese President of the international tribunal on the Law of the Sea
(ITLOS) completed the five man tribunal that will rule on the
Philippines arbitral claims. Initially, the Philippines appointed its
nominee to the panel, the German Judge at the ITLOS, Professor Rudiger
Wolfrum. Later, the ITLOS president appointed a polish academic to be
act as China’s arbitrator to the panel, Mr. Stanislaw Pawlak. Last
week, the three remaining arbitrators were appointed: Mr. Jean-Pierre
Cot of France, Mr. Chris Pinto of Sri Lanka, and Mr. Alfred Soons of
A jurist once remarked that “the law is what the Judges say it is”.
This means that while the Philippines has claimed thattChina’s
nine-dash lines is contrary to the UNCLOS, the 5 man tribunal will be
the sole judge of whether this is in fact the case. Before they can
decide the issue on the merits, they have first to rule whether the
Philippines submissions are covered by the compulsory and binding
dispute procedure under UNCLOS; that is, that it involves issues
relating to “application and interpretation” of the Convention; and
that the issues are not covered by any of China’s reservations, to
wit: disputes involving maritime delimitation; military activities,
including military activities by government vessels and aircraft
engaged in noncommercial service; and disputes concerning law
enforcement activities in regard to the exercise of sovereign rights
Since this five man tribunal will rule on whether China can treat the
South China Sea as its lake,a lot hinges on who these appointed
arbitrators are, Fortunately, in an effort perhaps to convince China
that the Tribunal will arrive at the correct decision, the ITLOS
President, despite the pending maritime disputes existing between his
own state of Japan and China, appointed perhaps the most qualified
arbitrators to rule on the issues of both jurisdiction and the merits.
Here is a short summary of who these arbitrators are:
Mr. Chris Pinto- member of the Sri Lanka bar and Barrister at the
Inner temple, London. Graduate of University of Sri Lanka
(Peradeniya), LL.B; and University of Cambridge: LL.M (International
Law). Honorary Ll. D from University of Colombo (Sri Lanka). Former
.Legal Officer, International Atomic Energy Agency, Vienna.
(1960-1963); Attorney, World Bank, Washington, D.C. (1963-1967)The
Legal Adviser, Ministry of Foreign Affairs, Sri Lanka.
(1967-1977)Member, Sri Lanka Delegation to the U.N. Conference on the
Law of Treaties, Vienna. (1968-1969)Ambassador of Sri Lanka to Germany
and Austria. (1977-1982)Member and Chairman, U.N. International Law
Commission, Geneva.(1973-1982) ;Member (later Chairman), Sri Lankan
Delegation, Third U.N. Conference on the Law of the Sea. (1973-1982)
Secretary-General, Iran-United States Claims Tribunal, The Hague.
(1982 to present) Secretary-General, Iran-United States Claims
Member (Sri Lanka), Permanent Court of Arbitration, The
Hague.Alternate Member (Sri Lanka), International Court of Arbitration
of the International Chamber of Commerce, Paris.Sole arbitrator in
dispute between Singapore firm and Sri Lanka State Timber Corporation
(Permanent Court of Arbitration);President of Five Member Tribunal in
marine environmental dispute Between Malaysia and Singapore. (Under
Annex VII of the UNCLOS). Source: Source:
Judge Jean-Pierre Cot
Member of the Tribunal (ITLOS) since 1 October 2002; re-elected as
from 1 October 2011; President of the Chamber for Marine Environment
Disputes 2008-2011. Licence en droit, Docteur en droit public, Paris
Law Faculty (1955–1965); Agrégé des facultés de droit et des sciences
économiques (1966). Professor of public and international law and
Dean, University of Amiens (1966–1969); Professor of public and
international law, University of Paris-I (Panthéon-Sorbonne)
(1969–1998); Emeritus Professor, University of Paris-I (1999–present);
Associate Research Fellow, Université Libre de Bruxelles
(1999–present); Counsel and Advocate in a number of cases before the
International Court of Justice: Frontier Dispute (Burkina
Faso/Republic of Mali), Territorial Dispute (Libyan Arab
Jamahiriya/Chad), Kasikili/Sedudu Islands (Botswana/Namibia), Armed
activities on the territory of the Congo (Democratic Republic of the
Congo v. Burundi), Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria), Sovereignty over Pulau Litigan and
Pulau Sipadan (Indonesia/Malaysia); Member of an arbitral tribunal of
the International Chamber of Commerce; Counsel and advocate, arbitral
tribunal, France/UNESCO; President of an arbitral tribunal established
within the framework of the European Development Fund; Judge ad hoc,
International Court of Justice, Maritime Delimitation in the Black Sea
(Romania v. Ukraine),Aerial Herbicide Spraying (Ecuador v. Colombia),
Territorial and Maritime Dispute (Nicaragua v. Colombia) and Temple of
Preah Vihear, Interpretation (Cambodia v. Thailand).
MR.ALFRED H.A.SOONS, Studied law at Utrecht University, The
Netherlands, followed by postgraduate studies in international law at
the University of Washington (Seattle, USA) and Cambridge University
(UK). He obtained a PhD-degree at Utrecht University in 1982.
Professor of public international law and director of the Netherlands
Institute for the Law of the Sea (NILOS) at Utrecht University in
1987. Acted as counsel and arbitrator he has been involved in
international litigation at the International Court of Justice and
Judge Stanislaw Pawlak
Member of the Tribunal since 1 October 2005. Born: Kalisz, Poland, 27
September 1933; Education: Master of Law, University of Warsaw (1955);
Doctor of Law, University of Warsaw (1967); Doctor habilitated of
Political Science, University of Warsaw (1973). Professional
Experience: Legal Adviser and Analytic Officer, Polish delegation to
the Neutral Nations Supervisory Commission in Panmunjon, Korea
(1956–1958); Attaché and Second Secretary, Polish Embassy, Tokyo
(1958–1963); Senior Counsellor, Ministry of Foreign Affairs
(1963–1965, 1970–1972); Deputy Chief, Polish delegation to the
International Control Commission, Saigon, Viet Nam (1965–1966); First
Secretary, Polish Embassy to the United States of America (1967–1970);
Deputy Director, Foreign Minister’s Office (1973–1975); Polish
Representative to the UN General Assembly (1973–1978, 1983–1990,
2002–2005); Associate Professor of International Relations and
International Law, Faculty of Journalism and Political Science,
University of Warsaw (1974–2001); Director, Department of
International Organizations, Ministry of Foreign Affairs (1975–1978);
Ambassador, Canada (1978–1983); Director, Legal and Treaty Department,
Ministry of Foreign Affairs (1983–1986); Head of Polish delegation,
talks with the GDR delegation on the Agreement of 22 May 1989 on
delimitation of the maritime boundary with the GDR (1983–1988); Head
of Polish delegation, talks with the USSR delegation on the
delimitation of the Polish-Soviet sea border (1985); Chairman, Polish
delegation to the Vienna diplomatic conference which drew up the draft
Convention on the law of treaties between States and international
organizations and between international organizations (1986);
Director, International Organizations Department, Ministry of Foreign
Affairs (1986–1989); Ambassador and Permanent Representative of
Poland, UN, New York (1989–1991); Visiting Professor, various
universities in the United States and Syria (1990–2001); Chairman,
group of Polish experts, talks with the delegation of experts of the
Russian Federation and delegations of experts of other interested
States on protection and conservation of marine resources of the Sea
of Okhotsk (1992–1995); Delegate of Poland to the Steering Committee
for Human Rights (CDDH), Council of Europe (1992–1995);
Deputy-Director, Legal and Treaty Department, Ministry of Foreign
Affairs (1992–1996); Chairman, Polish Delegation to the International
Conference which drew up the 1994 Convention on Protection of
Fisheries in the Bering Sea (1993–1994); Chairman, Polish Delegation
to the UN Conference for the Agreement on Straddling Fish Stocks and
Highly Migratory Stocks (1993–1995); Ambassador, Syrian Arab Republic
and Hashemite Kingdom of Jordan (1996–2001); Adviser to the President
of the Republic of Poland (2001–2005); Titular Ambassador
(2002–present); Professor of International Relations and Public
International Law, Faculty of Journalism and Political Science,
University of Warsaw (2002–2011); Professor Emeritus, University of
Warsaw; President, thirteenth Meeting of States Parties to the
Convention (2003); Chairman, Polish delegations to the thirteenth and
fourteenth Meetings of States Parties to the Convention (2003–2004);
nominated to the List of Arbitrators under article 2 of annexes V and
VII to the Convention (2004); Professor and Dean, Faculty of Social
Science and Administration, Warsaw Academy of Computer Science and
Judge Rüdiger Wolfrum
Member of the Tribunal since 1 October 1996; re-elected as from 1
October 1999 and 1 October 2008; Vice-President of the Tribunal
1996-1999; President of the Chamber for Marine Environment Disputes
1997-1999; President of the Tribunal 2005-2008; Member of the Special
Chamber formed to deal with the Case concerning the Conservation and
Sustainable Exploitation of Swordfish Stocks in the South-Eastern
Pacific Ocean 2000-2009
Education: First State Examination (1969); Second State Examination
(1973); Dr. jur., University of Bonn (1973); Habilitation, venia
legendi for National Public and International Public Law (1980).
Professional Experience: Assistant Professor, Institute of
International Law, University of Bonn (1973–1982); Research fellow,
Center for Oceans Law and Policy, University of Virginia (1977–1978);
Professor of National Public and International Public Law, University
of Mainz (1982); Professor, Chair of National Public and International
Public Law and Director, Institute of International Law, University of
Kiel (1982–1993); Vice-Rector, University of Kiel (1990–1993); Judge
at the Courts of Appeal for Administrative Matters, Lüneburg and
Schleswig (1986–1993); Director, Max Planck Institute for Comparative
Public Law and International Law, Heidelberg (1993–present);
Professor, Faculty of Law, University of Heidelberg (1993–present);
Vice-President, German Research Foundation (1996–2002); Honorary
Professor, Faculty of Law, University of Hamburg (2002–present);
Vice-President, Max Planck Society for the Advancement of Science
(2002–2005); Honorary Professor, Faculty of Law, University of
Pretoria; Member, Board of the Max Planck Foundation on International
Peace and Rule of Law (2012).
German delegation to: Third UN Conference on the Law of the Sea
(1980–1982), Preparatory Commission for the International Seabed
Authority and for the International Tribunal for the Law of the Sea
(1982), 4th Special Consultative Meeting concerning Antarctic mineral
resource activities (1983–1988); Chairman of the Legal Working Group
of the Antarctic Treaty Consultative Meetings preparing an Annex to
the Protocol on Environmental Protection to the Antarctic Treaty on
responsibility for environmental damage (1993–1998); UN Committee on
the Elimination of Racial Discrimination (1990–2000, re-elected 1994
and 1998); Founding Member of the Humanities Section of the German
Academy of Natural Sciences (Leopoldina) (2003); Board of Trustees of
the University of Hamburg (2003–present); Chairman, Board of
theDeutsche Gesellschaft für Völkerrecht (German Society for
International Law) (2005–2009); Institut de droit international
A piece of news from xinhua weibo (facebook) an hour ago. Hong Lei spokesman of the Ministry of Foreign Affairs of China said that Ambassador Ma met Philippine diplomats today. He informed the Filipino diplomats tChina is not acceptable to the note and notice about arbitrition from the Philippine side and therefore returned it. Hong also said the relavant note and notice has serious mistakes both in facts and law.
First Signs that China Is Taking the Philippines Arbitration Seriously?
Posted: 15 Feb 2013 10:35 PM PST
by Julian Ku
As far as I can tell, the Chinese government continues to pretend as if the Philippines’ Law of the Sea arbitration claim doesn’t exist. Articles like this one suggest the Philippines government continues to wait for some official or unofficial Chinese response. The February 22 deadline for China to appoint an arbitrator is fast approaching.
There are obviously bigger things going on in the world, and in East Asia (the North Korea nuclear tests come to mind). But it is worth noting that I ran across, for the first time, an article in the Chinese press discussing the arbitration with sophistication and a very good understanding of the Annex VII process. Published in the journal “瞭望新闻周刊“ or “Outlook Newsweekly”, the article describes the views of an unnamed expert advising the Chinese government not to take the Filipino arbitration claim lightly.
The expert offers a few considerations for the Chinese government. Among other things, the expert notes that the Philippines is using this arbitration to gain support and sympathy from its neighbors (Vietnam is supporting) and its allies (US Secretary of State Kerry and the EU Parliament head support it). The claim also hypes suspicions of China at the United Nations and elsewhere.
More interestingly, the expert further notes that if China does nothing, the arbitration will still continue with the Japanese ITLOS president appointing the rest of the members. (Maybe the expert was reading Opinio Juris!). In any event, the expert advises the Chinese government to appoint an arbitrator and work hard to convince to arbitration tribunal to dismiss for lack of jurisdiction. Moreover, China can at any time during the arbitration work out a settlement agreement with the Philippines. (There is more to the article, but this is the key advice).
So is this is a sign of where the Chinese government is going? It seems unlikely that the musings of an unnamed expert will be very important, but who knows? At the very least, it seems as if there is some thinking on this issue going on in China. The 30 day clock continues to tick. Only six days left!
Seabed a hotbed of controversy for Philippines, China Thomas Maresca, Special for USA TODAY4:34a.m. EST January 22, 2013
China has been dispatching ships and aircraft to enforce its ownership of the South China Sea, infuriating Asian nations whose coastlines also approach the sea.
MASINLOC, Philippines — Romeo Taneo, 39, has been going to Scarborough Shoal for as long as he can remember.
The rich schools of fish such as tuna found along the chain of reefs and rocks 124 miles from shore have been fished by the people of this Philippine town for centuries. But the 2,000 fishermen of Masinloc haven’t gone there in months, not since Chinese vessels arrived to claim the shoal for China even though its coastline is 500 miles away.
“We can’t fish there anymore,” Taneo said. “Whenever we go near, the Chinese chase us away.”
China has essentially said it wants to chase every nation from the South China Sea. It has laid claim to 1 million square miles of the sea and in recent months has been dispatching ships and aircraft to enforce its ownership, infuriating Asian nations whose coastlines also approach the sea.
It’s not just for the rich sources of fish that China and others are battling. The World Bank has estimated that the seabed contains huge deposits of oil and natural gas. The sea is a major route for the world’s cargo (50% of global oil tankers pass through it). As Asia’s economies and populations grow, the food source and the energy resources of the South China Sea will become even more important.
Confrontations that have already taken place between China and its neighbors over the sea could escalate and lead to war,observers of the situation say.
“The situation is quite worrying and we’re watching it closely,” said Stephanie Kleine-Ahlbrandt, China and Northeast Asia project director for the International Crisis Group. “The continuing presence of claimants’ law enforcement and fishing vessels in disputed waters are opportunities for skirmishes that may bring countries down a path they didn’t intend.”
The shoal, a triangle of rocks about 35 miles around, is one of a number of outcroppings and islands in the South China Sea that the People’s Republic of China says the Chinese discovered and claimed long ago. Scarborough is named for a British tea ship wrecked on its rocks in 1784 with no survivors.
In July, China proclaimed the creation of a Sansha, a new city on tiny Yongxing Island that would oversee jurisdiction of the Paracel, Spratly and Macclesfield Bank island groups scattered throughout the sea. In November, China issued passports with a map of China that included about 80% of the South China Sea.
Today it continues to protect Chinese fishing boats that ply shoal waters, even though the shoal is well within the Philippines’ a 200-mile zone that all coastal nations can claim as exclusively theirs according to the United Nations Convention on the Law of the Sea.
Vietnam, Malaysia, Brunei, Taiwan and the Philippines have claims to parts of the sea, and some have complained to the United Nations and the USA for help in dealing with China’s ownership announcement.
Tensions were high in April when the Philippines tried to act against China. Chinese vessels prevented a Philippine naval warship from pushing out Chinese fishing boats accused of poaching protected species such as sea turtles. Eventually both fleets agreed to go home, but Chinese marine surveillance vessels soon returned and remain. The vessels went as far as to rope off the entrance to Scarborough lagoon.
Caught in the geopolitical standoff are fishermen up and down Zambales, a province on the west coast of Luzon, the largest island in the Philippines.
“We’re afraid to go to Scarborough now,” said Francis Alaras, who has been fishing for 15 years out of Subic Bay. “Even the Coast Guard is afraid to go there.”
Taneo said he used to take in $250 to $500 in a good week catching grouper, Spanish mackerel and tropical aquarium fish around Scarborough. Now he might earn $50 in waters nearer the coast. Some fishermen journey several extra hours to avoid the Chinese-occupied area, burning additional fuel and squeezing their ability to make a profit.
What puzzles many in Masinloc is the suddenness of the change. Taneo said fishermen from several countries used to fish at Scarborough without incident, at times even boarding each other’s vessels to swap local delicacies and liquor.
“Why now?” he said.
Harry Roque Jr., a professor of law at the University of the Philippines, urged Manila to bring the Scarborough case before the U.N.’s International Tribunal for the Law of the Sea, which could issue a binding provisional decision. China and the Philippines are both signatories to the treaty.
“It would be the perfect way to defuse the tension if there is in fact a provisional measure,” Roque said. “Of course there’s no guarantee China will comply with it, but I think it’s very clear that in modern history no state wants to be branded a violator of international law.”
Philippine Foreign Affairs Secretary Albert del Rosario has also called for international arbitration in the Scarborough standoff.
“While we are at a disadvantage in terms of our resources and capabilities, it is our belief that international law is the great equalizer and that right is might,” he said.
On Tuesday, the Philippine foreign secretary said that he has summoned China’s ambassador in the Philippines to inform her that Manila is seeking arbitration at an international tribunal. Del Rosario said the Philippines has exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of maritime disputes with China, and hopes that the arbitral proceedings will bring results.
China, however, has said it would not accept an international judgment and will only resolve the matter in one-on-one talks with individual countries, which its smaller neighbor the Philippines says puts it at a severe disadvantage.
The conflict has gotten the Philippines to turn for help to a former hated enemy, Japan, whose occupation of the Philippines during World War II is not forgotten here. Last week Japanese Foreign Minister Fumio Kishida pledged 10 patrol ships and communications equipment for the Philippines coast guard, according to media reports. Japan is fending off similar territorial claims that China his pressing over the Senkaku Islands in the East China Sea.
The United States has stayed neutral in the territorial disputes, saying only that they should be resolved through negotiation. The USA and the Philippines held discussions in December that del Rosario says should result in an increased naval rotational presence in the Philippines that “will serve to guarantee peace and stability in the region.”
Murray Hiebert, deputy director at the Center for Strategic and International Studies, says U.S. interests lie most clearly lie in maintaining the unrestricted movement of trade in the South China Sea.
“Freedom of navigation is absolutely critical,” he said. “A whole lot of oil and iPads move through there.”
China shows little sign of backing down, however.
In November, the Chinese province of Hainan said it police vessels may board and search foreign ships that “illegally” enter Chinese waters.
“If China persists in its view that (the South China Sea) is a Chinese lake, then we’re headed for conflict,” Roque said. “And I think every single nation on earth that wants to use the seas will have an interest in it.”
For now, solutions seem scarce. Some observers suggested that joint development of fishing and hydrocarbons in disputed areas is a reasonable way forward. But the charged environment is making cooperation increasingly difficult.
“If the political will were present, (joint development) would be possible,” said Robert Beckman, director of the Center for International Law at National University of Singapore. “However, under the present political climate, it seems unlikely.”
In Masinloc, the fishermen are looking to the future with a characteristically Filipino blend of fatalism and optimism. Masinloc’s fishery officer, Jerry Escape, says people are looking at other ways to earn a living, such as establishing more fish hatcheries to increase fish stocks closer to shore and promote tourism of its pristine areas.
“We will find a way,” he said. “We are Filipinos. That is what we do.”
I’m not at all surprised that Uncle Sam opted to be neutral in our on-going row with China on the Scarborough Shoal. Fact is -other than maintaining freedom of navigation in the South China Sea; it is not to the national interest of the United States to engage its biggest creditor in any controversy. Furthermore, since it gave us “independence”, the US has never recognized our claims to the waters found in the metes and bounds of the Treaty of Paris. They have argued consistently that what it bought from the Spaniards was the land territory of the Philippines, never mind that the treaty itself uses the qualifier “archipelago”, which in ordinary parlance refers to islands and waters constituting a unified whole. In fact, not too long ago, the Americans already made it very clear that notwithstanding the Mutual Defense Pact between the Philippines and the United States, the later would not come to our rescue if an armed conflict should erupt between China and us over the Spratly’s. And why would they? Our problem, simply put is – Uncle Sam has never bought our argument that the Spratly’s and the Scarborough are ours.
In any case, it was ill advised of our policy makers to appeal to the United States for military assistance in the resolution of this dispute. One, the use of force under international law, sans a UN Security Council Chapter 7 resolution or unless done in self-defense- is illegal under international law. Full stop. What were our policy makers thinking? Did they think that war could solve this controversy?
Moreover some politicians in China would want nothing less than an escalation of the controversy. This would had been inevitable had the United States come to our recue. China is today undergoing a political crisis of sorts when its rising political star, Bo Xilai, recently figured in a scandal. The heir apparent to the highest post in the Chinese politburo was recently fired and his wife ordered to be investigated in connection with the murder an Englishman. What has been unfolding now in China is a race to fill in the vacuum created by Bo’s expulsion from the politburo. Like our own politicians who can smell a great political opportunity, it would have been a disaster had the US decided on a more aggressive role in the ongoing spat. This would have given some Chinese politicians tremendous opportunity to invoke Chinese nationalism against “US meddling”. The result could have led to a military confrontation reminiscent of the Vietnam War of the 1970’s with the modification that the South China Sea and the Philippines may be the theatre of war. Thank goodness hence that Uncle Sam decided in the manner that it did. The alternative would have been all-out war.
In any case, I reiterate that because the law, the UNCLOS, is on our side, the time is ripe to submit this controversy to the mandatory and compulsory jurisdiction of the International Tribunal on the Law of the Sea (ITLOS).
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)