China’s claims to the disputed South China Sea are to come under international legal scrutiny for the first time this week, but while Beijing has officially refused to take part in the case filed by the Philippines at a UN tribunal, it has made its presence felt.
Indeed, Manila’s international legal team was heading to the Permanent Court of Arbitration in The Hague to initially argue that the five-judge panel has jurisdiction to hear the case, Philippine Ministry of Foreign Affairs officials said.
That is because of concerns China raised in a public position paper in December last year about the tribunal’s jurisdiction over the matter, according to court statements.
Photo: Reuters
A little-noticed decision by the tribunal’s panel in April acknowledged China’s objections and announced that a hearing on jurisdiction from tomorrow to Monday next week would be held first.
Manila filed the case in 2013 to seek a ruling on its right to exploit the South China Sea waters in its 200-nautical mile (370km) exclusive economic zone (EEZ) as allowed under the UN Convention on the Law of the Sea (UNCLOS).
While legally binding, any decision that favors the Philippines would be unenforceable because there is no UN body to police such rulings, legal experts said.
Nevertheless, such a ruling would be a diplomatic blow to Beijing and might prompt other claimants to the South China Sea to take similar action, legal experts and diplomats said.
The case is being closely watched by Asian governments and Washington given rising tensions in the South China Sea, especially in the Spratly Islands (Nansha Islands, 南沙群島), where China is creating seven artificial islands to allow its navy to project power deep into the maritime heart of Southeast Asia.
China claims most of the waterway, including many reefs and shoals that Manila considers are within its EEZ. Parts of the EEZ contain rich fishing grounds and energy deposits.
Taiwan, Vietnam, Malaysia and Brunei also have claims to the South China Sea, through which US$5 trillion in ship-borne trade passes every year.
Some international legal academics and South China Sea experts said China was effectively taking part in the case even though it had officially refused to do so.
“It appears the tribunal panel is bending over backwards to accommodate China’s interests and appear even-handed to both the Philippines and China,” said Ian Storey, a South China Sea expert at Singapore’s Institute of South East Asian Studies.
Experts said that did not mean the judges would find in Beijing’s favor.
“They are being as fair as they can... They seem to sense China will scrutinize every word in any final ruling,” one legal academic said.
Without China’s permission, Manila cannot seek a ruling at the International Court of Justice in The Hague on the sovereignty of the disputed territory, legal academics said.
Instead, Manila has invoked dispute settlement procedures under UNCLOS, a system that allows for arbitration even when one side objects and refuses to participate.
The Law of the Sea does not rule on sovereignty, but it does outline a system of territory and economic zones that can be claimed from features, such as islands, rocks and reefs.
The Chinese position paper in December last year said the “essence” of the Philippine case was sovereignty, and therefore beyond the scope of the tribunal.
Storey said the hearing on jurisdiction could delay any final ruling by six to 12 months, meaning the case could linger beyond the single term of Philippine President Benigno Aquino III, which ends in June next year.
Aquino has been a key figure behind the legal challenge, at times drawing China’s ire by comparing its South China Sea claims to Nazi Germany’s expansionism before World War II.
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