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UPDATED: April 21, 2014 NO. 17 APRIL 24, 2014
A Sea of False Accusations
The Philippines' legal challenge over South China Sea disputes is untenable
By Cao Qun

EEZ claims

The Philippines also argued that China's sovereignty claim over some low-tide elevations or submerged features such as Meiji Reef, Ximen Reef, Nanxun Reef and Zhubi Reef violates the UNCLOS, which says submerged features not above sea level at high tide are part of seabed and cannot be subject to the sovereignty of a state. However, China released its nine-dash line long before the UNCLOS entered into force. The international law community at that time distinguished seabed and subsoil from waters in the high seas. They essentially deemed that the seabed and subsoil can be occupied. For instance, the eighth edition of Oppenheim's International Law published in 1955 said that states' exploitation of seabed resources through the activities of their people had become an international practice.

In the 1940s and 1950s, especially after Washington issued the Truman Proclamations in 1945, there were many cases of countries claiming rights over seabed and subsoil in the high seas. Truman Proclamation 2667 said the U.S. Government "regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control." Truman Proclamation 2668 vowed to establish conservation zones in those areas to protect fishery resources. Therefore, it is unfair to question China's "historic title" over the submerged features within the nine-dash line that have been officially identified by China.

It is worth noting that the low-tide elevations or submerged features the Philippines mentioned are all located within the EEZs of larger islands. Thus, the Philippine accusation that China claims too many waters is groundless. In a recent article published in RSIS Commentaries titled The South China Sea Disputes: Formula for a Paradigm Shift?, scholars Robert Beckman and Clive Schofield wrote that China could limit its EEZ claim to just the 12 largest islands in Nansha Archipelago. They all have vegetation and in some cases roads and structures have been built on them. Therefore, they are "islands" entitled in principle to EEZ and continental shelf rights of their own under the UNCLOS. The two authors pointed out that while it may appear that using only the larger disputed islands to generate its EEZ claim would entail a "loss" of potential maritime areas to China, the impact would actually be minimal because the islands are grouped in close proximity to each other, allowing a broad sweep of EEZ claims. They argued that claiming only the larger islands will not limit China's maritime reach significantly, but would bring the country's claim more in line with international law.

Furthermore, the Philippines has failed to fulfill the obligation to exchange views with China on the disputes. Article 283 of the UNCLOS says that when a dispute arises between state parties concerning the interpretation or application of the convention, the parties shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. And in accordance with Article 286 of the convention, if the Philippines fails to fulfill this obligation, it has no right to subject the disputes to compulsory procedures. In fact, the Philippines knows the importance of this obligation, and often regards diplomatic consultations on sovereignty disputes involving Huangyan Island and Meiji Reef as evidence that it has fulfilled the obligation. As previously mentioned, arbitration under the convention should not address any dispute concerning sovereignty over land territory. The Philippines also states explicitly in its notification and statement that it does not "seek in this arbitration a determination of which party enjoys sovereignty over the islands claimed by both of them." It therefore has no reason whatsoever to use diplomatic consultations on sovereignty disputes as evidence of fulfilling the obligation to exchange views.

In conclusion, the Philippines' push for international arbitration against China over maritime disputes in the South China Sea is suspected of abusing the procedures of the UNCLOS. It also seeks to damage China's image by deliberately distorting the country's stance. Since the arbitration items the Philippines submitted either go against facts or international law, or involve disputes that China has excluded from arbitration procedures, the arbitral tribunal should conclude that it has no jurisdiction over the case.

The author is an assistant research fellow with the China Institute of International Studies

Email us at: yanwei@bjreview.com

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