It takes a month to translate this article to English. Because of specific vocabularies and legacy knowledge, the translated article maybe has some fouls. It would be helpful if readers leave comments to help me fix it. Many thanks.
To see original link, click this
To see original link, click this
What does Philippines sue China in Arbitrator Tribunal? How do they do it?
A work of Nguyen Dang Thang – Postgraduate in Law in England, analyses mechanism to solve disputes in
UNCLOS and Filipino concern about the South China Sea and find the perspective
if Philippines sues China and the lesson for Vietnam.
Last July, Filipino minister Abert del Rosario
announced an ability to solve dispute with China
in the South China Sea in the International Court.
Firstly, Philippines
suggested China to use the
law of sea tribunal to solve the dispute in the Spartlys Island.
After, China rejected and requested
two-side negotiation, Filipino Minister confirmed strongly that they would use
UNCLOS 1982 to sue China.
The Minister announced they would use
UNCLOS to define what areas in the sea are dispute or not.
Hypothesise the right of the Philippines and China
claims in the Spartlys, the way Philippines sue China to protect its interest
will be a lesson for Vietnam when face the same situation which the spokesman
of Vietnam described “China are make a non – dispute area to dispute one. To
understand how Philippines
sue China,
we must know what they want to sue. Although, Philippines doen’t show their action
but they quite feel confidence. The answer was maybe found out by studied
Filipino concern about the South China Sea in
connect to the UNCLOS and perspective of handling the issue.
Reed Bank incident – a recent special interest of Philippines.
Filipino Minister’s declaration of using mechanism of
UNCLOS to solve disputes started from tension between Philippines and China in Spratlys (Kalayaan or KIG
in Filipino), firstly in Reed Bank. In the last March, two Chinese patrol ships
harassed an English seismic survey vessel hired by Philippines in Reed Bank [3]. Philippines
had strong reaction immediately when sent two fighters and two vessels to escort
during survey time. In diplomatic, Philippines sent a diplomatic note
and representative to protest.
As a result, in April, Philippines
continued to protest China in the UN again the Chinese U – shape line map
which described Filipino sovereignty in Spartlys belonging to China. In the diplomatic note of Philippines,
It showed that the Chinese nine dotted U – shaped line didn’t base on any article
in the International Law, especially the UNCLOS. In response, China sent a
diplomatic note to the UN Secretary to confirm its territory in Spartlys which
followed the UNCLOS and its legacy system and emphasis that “Spartlys island
completely has its territory water EEZ and continental shelf.”.[5]
In the 21st conference of members of UNCLOS
in last July, in New York, the Secretary of
Sea and Ocean issue Committee of Philippines concerned that the incident in
Reed Bank indicated that an area that belong to Philippines without dispute, now is
dispute issue[6].
Comparison to speech of Minister of Philippines, They intend to use the Arbitrator
Tribunal to confirm Reed Bank belong to Philippines. This is very necessary
because this area has potential for oil. The president of Philippines recently declared to
protect this area[7]
and they have afforded weapons to increase their military power. However,
military power of Philippines
is one of the weakest in ASEAN and doesn’t compare to China. Moreover, solutions to
handle sovereignty dispute are negotiation in peace than violence. So that,
using the Arbitrator Tribunal to solve sovereignty dispute is a smart solution
of Philippines.
The question is “Can Philippines do it?”. To answer it, we must understand
mechanism and progress of UNCLOS and the Arbitrator Tribunal.
Mechanism to solve dispute in UNCLOS and ability to apply in dispute between Philippines and China in the South China Sea.
Mechanism to solve dispute in UNCLOS seems to be the
most modern and a model in solving dispute mechanism in the international laws.
Before go to the detail, we must press a regular. The objects of dispute must
be explainable and applicable in the UNCLOS.
Solving
dispute mechanism in UNCLOS is in Part XV and detailed in some appendices. Part
XV in UNCLOS has three sections, two first sections write about sequence and
procedure to solve the dispute and third section write about some exceptions in
applying procedure to solve the dispute.
Section I
of Part XV contains some articles about dispute resolution; the most remarkableness
in this section is the obligation to exchange views when dispute arises
(Article 283). When all parties used the Section I but dispute couldn’t be
solved, any party can unilaterally use the Section II to find a judgment that
has jurisdiction over all parties (Article 286). In other way, the UNCLOS
regulations in Section II, Part XV set a binding procedure to solve the dispute
and it will give a enforced and ending judgment to all parties (Article 296).
With Section II, All disputes, which relate to explain and apply the UNCLOS,
will be solved. This is an advance and high valuable point of the UNCLOS.
There are
four procedures for settlement of dispute in Article 287, Section 2, Part XV:
(i) The International Tribunal for the Law of Sea established in accordance
with Annex VI; (ii) The international Court of Justice (a part of UN); (iii) An
tribunal constituted in accordance with Annex VII and (iv) a special tribunal constituted
in accordance with Annex VIII for one or more of the categories of disputes
specified therein. To remain independence between two states in choosing
procedures for settlement of dispute, if both of two states choose one procedure
for settlement of dispute, the procedure will be used. However, in case of two
states choose two different procedures or one of two states doesn’t choose any
procedure, procedure in Annex VII will be used. Because, Philippines
and China
doesn’t choose a procedure, the Annex VII will be used.
However, it
doesn’t mean all disputes in explanation and application will be used Section 2.
Section 3, Part XV has some exceptions and limitations in jurisdiction. The
most remarkable exceptions in dispute between Philippines
and China in the South China Sea, which are listed in Article 298 and
Annex VII, exclude dispute in explanation and applicability in sea boundary
delimitations in article 15, 74, 83. The exceptions in Article 298 are called
“Optional” exceptions, because states have the right to whether exclude some of
it or not. In 2006, China declared all disputes which be listed in Article 298
are exceptions include disputes in explanation and applicability of sea
boundary delimitation in Article 15, 74 and 83, So, to ensure the arbitrator
tribunal in Annex VII will receive its submit, the Philippines must explain
dispute with China in the form of explanation and applicability of the
Convention but they aren’t exceptions and applicability which China declared to
exclude in 2006.
What dispute uses the Arbitrator Tribunal in Annex VII and the Ability
The most concern of the Philippines is separating Reed Bank
from the Spartlys dispute. Let’s talk about Reed Bank before discuss about the
ability of using any article in the Convention to advance the Philippines.
Reed Bank is a permanent sinking bank [8], 80 nautical
miles far from Palawan, 500 nautical miles far from Hainan Island
[9] and 35 – 40 nautical miles far from the Spartlys[10]. Because of distance and nature of the bank,
the Reed Bank can’t be a national boundary to occupy and it is only a
continental shelf of a nation. In the Convention, the length of continental
shelf is at least 200 nautical miles and more. However, in the South China Sea,
the Reed Bank can’t belong to the Continental shelf of China from the Hainan Island.
All claims of China on the
Reed Bank are only from claims of China on the Spartlys. In fact, China announced that the Spartlys had its
continental shelf in a controversy with Philippines in UN.
In other hand, distance from the Reed Bank to Palawan
is less than 200 nautical miles, so the Reed Bank seems belong to the
continental shelf of the Philippines
if the Spartlys doesn’t have continental shelf. Therefore, the best way to the Philippines to reject claims of China on the Reed Bank is rejecting claims of China
which declared the existence of continental shelf in the Spartlys.
Article 121 in the Convention will explain continental
shelf of the Spartlys. In Article 121, a
land which is above water without human habilitation or economic life of its
own will be considered a “Rock” without continental shelf. A land which is not
a rock will be an island. So, in case China
declared that the Spartlys has its continental shelf, it means the Spartlys is
island and the Philippines
can create a dispute with China
by declaring that the Spartlys is rock. So it will become explanation and
applicability dispute in Article 121 and the Philippines can itself request a Arbitrator
Tribunal in Annex VII to settle this dispute. Because of disputes in Article 121 aren’t
belong to exceptions in Section 3, the Arbitrator Tribunal in Annex VII will
have completely right to judge this dispute. If the Arbitrator agrees with the Philippines, all declarations of China
will be nullity. In other words, the Arbitrator will indirectly accept that the
Reed Bank is in the continental shelf of the Philippines. This is the thing that
foreign minister of the Philippines means when declared the Arbitrator Tribunal
defined where is dispute area or not.
However, there are some risks in using this strategy. The
concept of “rock” with meaning “human habilitation” or “economic life” in
Article 121 is confused. In fact, there aren’t any legal precedent in
explanation and applicability in Article 121, so the jurisdiction will depend
on view of arbitrators. [12] To the Spartlys, researchers have many view
points. In case, the Philippines
fails to prove the Spartlys is rock, the Spartlys will have its continental
shelf and create overlapping claims over the continental shelf. In this case, the
Philippines
must request the Arbitrator Tribunal to define its continental shelf. But,
because of explanation and applicability in Article 15, 74, 83 and declaration
of China
obeyed Article 298; the Arbitrator Tribunal can’t accept filing. So it can not
define clearly the continental shelf of the Philippines
in a dispute with China.
An
important point is attitude of China
when the Philippines
requests the Arbitrator Tribunal in Annex VII. In Annex VII, the Convention set
closely and fully a procedure to ensure an establishment of arbitrator tribunal
when a party requests. Specifically, the Annex prescribes that in case, a party
doesn’t appoint a tribunal or all parties can’t agree about a tribunal, the
president of the international tribunal for the law of sea will appoint members
of the tribunal (Article 3, Annex VII). Especially, event when one of parties
isn’t cooperate, the arbitrator tribunal still have jurisdiction in Article 9
of Annex VII. Therefore, China
has one way to take part in the tribunal to protect its declaration.
A lesson from the Philippines
When China
always wants to negotiate the dispute bilaterally and impose its views, it’s
smart and audacious for the Philippines
to request unilaterally establish a arbitrator tribunal in Annex VII to protect
its rights. When a party is stronger than other one, weaker party has no choice
to use the international law. The Philippines seems to do all obligations
in procedure to set up a arbitrator tribunal in Annex VII. One of those
obligations is “view exchanging obligation” by sending a negotiation team to China after the Reed Bank incident and a request
of foreign minister of the Philippines
to a college of China for using the arbitrator tribunal
in its dispute.
As mentioned before, the most suitable dispute object
which the Philippines
can use to request an arbitrator tribunal in Annex VII is dispute over
explanation and applicability of Article 121. A jurisdiction of the tribunal
which declare that the Spartlys hasn’t island and continental shelf is interest
of the Philippines
in the Reed Bank.
However, Some risks maybe still happen when the
Philippines uses the arbitrator tribunal in Annex VII to explain and apply
Article 121 to the Spartlys because of no law precedent and different views of
lawyers. Moreover, China
still remains its claims which declare economics zone and continental shelf of
the Spartlys. A jurisdiction which declares that the Spartlys has its economics
zone and continental shelf isn’t completely bad. At least, it doesn’t make
situation worse. Conversely, an answer to question “Claims of china are right
or wrong?” can help the Philippines
understands what they have, what they don’t have in the South
China Sea. It will wipe out equivocality in legality of China’s
claims. Moreover, with no law precedent,
the Philippines
will have chance to convince the tribunal of explanation and applicability
Article 121 in the Spartlys case.
In Vietnam
situation, the continental shelf in South West of Vietnam is claimed by China in Viking II event and Vietnam likely faces the same situation like the
Philippines.
If it happens, Vietnam
should think about using the procedure in Annex VII of the Convention to
protect its right.
As analysed
before, if the Philippines determine
to sue China
for explanation and applicability of Article 121, an arbitrator tribunal in
Annex VII will be established. However, a jurisdiction just has legal value to
the Philippines and China.
But, a jurisdiction over the Spartlys dispute between China and the Philippines
will affect to Vietnam
interest. Vietnam
will get more information and solutions in its policy in the Spartlys.
Nguyễn Đăng Thắng,
Nghiên cứu sinh luật tại Anh
* Nguyễn Đăng Thắng, Nghiên
cứu sinh luật tại Anh; Thành viên không thường trú, Trung tâm Nghiên cứu Biển
Đông, Học viện Ngoại giao Việt Nam.
Tác giả cám ơn Tiến sỹ Dương Danh Huy, Thạc sỹ Nguyễn Thị Thanh Hà, Phó Giáo sư
- Tiến sỹ Nguyễn Hồng Thao và Thạc sỹ Trần Lê Phương đã trao đổi quan điểm với
tác giả, cung cấp những thông tin quan trọng cũng như góp ý trực tiếp vào bài
viết.
[1] “Philippines
to seek UN arbitration in South China Sea” Agence
France Presse (19 July 2011) <http://globalnation.inquirer.net/6371/philippines-to-seek-un-arbitration-in-spratlys>
.
[2] “Thông báo tại cuộc họp báo
ngày 29/05/2011 của Bộ Ngoại giao về việc tàu Hải giám Trung Quốc đã cắt cáp
thăm dò của tàu Bình Minh 02 thuộc Tập đoàn Dầu khí Việt Nam” http://www.mofa.gov.vn/vi/tt_baochi/tcbc/ns110529201615/view#b1IpAlKkl3wz
.
[3] Xem I Storey, 'China and the Philippines:
Implications of the Reed Bank Incident' (2011) 11(8) China Brief 6,
7.
[4] 'Note Verbale No. 000228 dated 05
April 2011 of the Permanent Mission of the Republic of the Philippines to the
United Nations', có tại http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/phl_re_chn_2011.pdf.
[5] 'Note Verbale No. CML/8/2011 dated
14 April 2010 of the Permanent Mission of the People's Republic of China
to the United Nations', có tại http://www.un.org/depts/los/clcs_new/submissions_files/vnm37_09/chn_2011_re_phl_e.pdf
.
[6] Trích trong Press Release NYPM 30-2011
ngày 22/06/2011 của Phái đoàn thường trực Cộng hòa Phi-líp-pin bên cạnh Liên
hợp quốc, có tại http://www.un.int/philippines/news/20110622nypm30.htm .
[7] Xem 'Philippines
vows to protect South China Sea assets' Agence
France Presse (25 July 2011), có tại http://www.channelnewsasia.com/stories/afp_asiapacific/view/1142928/1/.html
.
[8] Xem MJ Valencia, JM Van Dyke and NA
Ludwig, Sharing the resources of the South China Sea
(Martinus Nijhoff, The Hague, 1997), 232, tập hợp các nguồn khác nhau cho rằng
chỗ cao nhất của Bãi Cỏ Rong nằm cách mặt nước biển 9 hoặc 16 mét.
[12] Xem Tuyên bố của Thẩm phán Vukas và Phản đối của Thẩm
phán Anderson, chú thích 3, về đảo Heard của Úc trong vụ “The ‘Volga’, Russian
Federation v Australia, Prompt Release”, ITLOS Case No 11 (ITLOS 2002)
Nhận xét
Đăng nhận xét