Arbitration upholds rule of law in the South China Sea

When the Philippines instituted arbitration proceedings in January 2013 against China on the maritime dispute over the South China Sea/West Philippine Sea, questions were raised on whether it was an appropriate move by a small developing country to take on an up-and-rising China.

With China's growing influence in global affairs, not a few countries believed that the Philippines at that time stood no chance against its giant neighbour. The Philippines was even branded as a troublemaker for taking the arbitral action.

The Philippines has consistently maintained its position to settle the West Philippine Sea issue that it has with China in a peaceful manner based on international law, particularly the 1982 United Nations Convention on the Law of the Sea (Unclos).

 
 

Contrary to Chinese allegations, the Philippines has utilised multiple avenues at the bilateral and regional levels with the objective of reaching a peaceful resolution to the dispute with China. Several high-level meetings had been held that did not result in any settlement. China's position of "indisputable sovereignty" over virtually the whole of the South China Sea/West Philippine Sea is simply a non-starter in any form of talks to settle the dispute.

In an article that appeared in The Straits Times on March 5 this year, Chinese Ambassador Chen Xiaodong claimed that the South China Sea dispute between China and the Philippines is, in essence, a territorial dispute over some islands and reefs in the Nansha islands and an issue of maritime delimitation. Thus, according to Ambassador Chen, the arbitral tribunal does not have jurisdiction over the Philippines' arbitration submissions.

Interestingly, these are reiterations of the arguments that China presented in its Position Paper that was considered by the tribunal. In this light, it is instructive and enlightening to refer to the arbitral tribunal's decision on Oct 29 last year that squarely addressed the points raised by the good ambassador.

First of all, the Philippines' case with China is neither a territorial dispute nor an issue of maritime delimitation. As the Philippines stated time and time again, it has not asked the tribunal to rule on the territorial sovereignty aspect of its dispute with China. Instead, it only seeks to clarify maritime entitlements in the South China Sea, a matter that is most important not just to the Philippines and the coastal states that border the South China Sea, but also to all the state parties to Unclos. This was validated when the tribunal issued its award on jurisdiction on the Philippine arbitration case in October last year.

From the beginning, China has maintained its stance not to accept the arbitration and not to participate in the arbitral proceedings. Certainly, the Chinese position will not affect the functions of the tribunal that is hearing the case. As cited by Associate Professor Robert Beckman, director of the NUS Centre for International Law, in his article that appeared in The Straits Times on March 8 this year, the non-appearance of one party does not constitute a bar to the proceedings of the tribunal.

The above circumstances beg a question. Would it have been good for China not to ignore the tribunal and to participate in the proceedings? It seems that the answer would be yes.

It would show to the world that China, with its growing stature, is a responsible member of the global community of nations that plays by the rules it has helped establish. Participating in the arbitration will help strengthen the legal processes provided in universally recognised instruments, such as the Unclos, the Constitution of the oceans.

By pursuing arbitration, the Philippines upholds the primacy of the rule of law in international relations. Along the way, we have garnered widespread support from other countries that believe that this is the right thing to do.

The Philippines has committed to abide by the ruling of the tribunal. The international community expects no less. China's adherence to the tribunal's final award will manifest the true meaning of its peaceful rise.

The tribunal's award is legally binding on all parties and will provide a sound basis for moving forward to a new beginning of a rules-based regime in the South China Sea.


  • The writer is the Philippine Ambassador to Singapore.
A version of this article appeared in the print edition of The Straits Times on March 18, 2016, with the headline 'Arbitration upholds rule of law in the South China Sea'. Print Edition | Subscribe