By Hai Boping

May 17, 2016

"The United Nations Convention on the Law of the Sea (UNCLOS) established an intricate legal framework for the oceans. Under the Convention's Part XV: Settlement of Disputes, the Philippines instituted arbitration against China on Jan. 22, 2013 with a purported aim to seek a solution to the bilateral maritime dispute and adjudicate on the lawfulness of China’s actions in the South China Sea. The case brings into the spotlight some of the thorny issues that the practice of UNCLOS has long sought not to contend with and has led to situations previously unseen in the practice of the Convention. There is no doubt that when the arbitral tribunal renders its award on the case, it will be a moment of major significance for the settlement system, whose application is still in its infancy, and have considerable implications for the Convention on the whole.

The Philippines cleverly broke apart its territorial dispute with China into specific matters and included in its submissions those regarding historic rights, the status of certain maritime features and the entitlements they are capable of generating, and the lawfulness of China's actions. These submissions, at first glance, seem not to concern the issue of delimitation. Yet the former set of issues would form the basis of determining sovereignty, while the latter can only be decided after territorial disputes are settled. The Philippines can't just pretend not to know that these submissions are closely associated with delimitation, something beyond the scope of the tribunal's jurisdiction. China is the Philippines' maritime neighbor, not some faraway flag country or a distant country that occasionally sends fishing boats to the region. Four island groups lie between the two countries and their waters are yet to be delimited. The final ruling on these submissions would have a critical impact on any future process deciding sovereignty and delimitation matters. What has been left out of the arbitration by the Philippines is only delimitation in its narrowest sense. What is truly at stake in this arbitration is territorial rights and basis for delimitation. That is not something the Philippines can deny no matter how cleverly it works its case."

Read more:
http://www.chinausfocus.com/peace-security/time-to-stop-using-arbitration-for-selfish-gains/

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