UP prof to Tokyo conference: China violated UNCLOS over West PHL Sea claim

China has violated the United Nations Convention on the Law of the Sea (UNCLOS) when it snubbed the Philippine arbitral claim on the West Philippine Sea and when it built structures on disputed reefs in the area.

This was the pronouncement made by international law expert and University of the Philippines professor Harry Roque Jr. in his speech at the 5th Annual Meeting of the Japan Society of International Law at the Chuo University Law School in Tokyo last Sunday.

Roque said China’s refusal to participate in the arbitration and its unilateral acts in building artificial islands in the disputed maritime area of the Spratly’s constitute a “serious and belligerent violation... [and] breach of the UNCLOS since as a party to the Convention, China agreed to refer all matters involving interpretation and application of the UNCLOS to the compulsory and binding dispute settlement procedure of the Convention."

In his speech, Roque contested a claim made recently by Judge Xue Hanquin, the Chinese Judge in the International Court of Justice, that countries like China, which made declarations when they ratified the UNCLOS, are deemed to have opted out of the dispute settlement procedure of the Convention.

Roque stressed that China’s "subsequent reservations" only as to specific subject matters from the jurisdiction of the dispute settlement procedures proved that China agreed to be bound by the procedure.

China's clear obligation

“This means that China is under a very clear obligation to participate in the proceedings, if only to dispute the jurisdiction of the Tribunal,” Roque said.

Roque, who is also the director of the UP Law Center’s Institute of International Legal Studies, added: “By prohibiting reservations and by adopting all provision on the basis of consensus, it was the intention of the world community to do away with the use of force and unilateral acts in the resolution of all disputes arising from maritime territory."

Roque described as "worrisome" recent reports that China has been building artificial islands in Johnson South Reef and expanding its artificial island in Fiery Cross reef, and deploying its naval forces to ward off any opposition.

“These constructions are happening in the face of China’s snub of the arbitral proceedings which precisely impugns China’s legal rights to do so. Clearly, China’s conduct is not only illegal as prohibited use of force, but is also contemptous of the proceedings," Roque said.

In the arbitration case it had filed, the Philippines is asking the International Tribunal on the Law of the Sea to declare China’s nine-dashed line map as illegal since it is not sanctioned by the UNCLOS.

The nine-dash-line is a map showing a U-shaped line enclosing almost the whole of the South China Sea, which China claims belongs to them. The map has been widely protested by several countries including the Philippines and criticized in the international community.

The Philippine claim also asked the Hague-based arbitral tribunal to declare the so-called four “low-water elevations” that are only visible during low tide as part of the continental shelf of the Philippines. The Philippines also wants the waters outside of the 12 nautical miles of the Panatag Shoal to be declared as part of the Philippine Exclusive Economic Zone.

Roque said the Chinese government has been insisting that China's claim over the South China Sea cannot be resolved by UNCLOS because the waters within the nine-dash lines are generated by land territory, and not maritime territory.

The UNCLOS, to which the Philippines and China are signatories, is an international agreement that defines the rights and responsibilities of member-nations in their use of the world's oceans.

PHL's 'mixed claim'

Zhang Xinjun, a professor at the Tsinghua University who attended the Tokyo conference, characterized the Philippine arbitral claim as a “mixed claim” because it involves both claims to sovereignty arising from land territory and not just purely maritime territory.

This, he explained, is why the UNCLOS arbitral tribunal lacks jurisdiction over the Philippine claim.

In his speech, Roque belied the Chinese government and Xinjun's claim, sayiang “while the Spratlys dispute without a doubt also involves land territory, these are not the subjects of the Philippines claim."

“Clearly, the three specific prayers of the Philippines involve interpretation and application of specific provisions to UNCLOS relating to internal waters, territorial sea, Exclusive Economic Zones, islands, and low tide elevations,” he said.

Meanwhile, Japanese academic and professor Nishimoto Kentaro of the Tohoku University, has described the Philippines' position against the nine-dashed line as “very strong,” according to Roque.

Roque said the Japanese professor supported the Philippines position on the nine-dash lines, arguing that in seeking a declaration of nullity of these lines, the Philippines was not engaged in maritime delimitation, but in an action for a declaration of rights, which is an issue of interpretation and application of the UNCLOS.

Kentaro, however, expressed reservations whether the Philippines could prevail in impugning China's title to all four islands because at least two of these islands are within the 200 nautical miles of Ito Iba Island, currently under the control of Taiwan.

Japan is also engaged in its own territorial dispute with China over Senkaku Island. —KBK, GMA News