Philippines, China, UNCLOS and the South China Seas
Recently, we hear a growing chorus how the China – Philippines dispute in the South China Seas ought to be settled by binding arbitration under the United Nations Convention on the Law of the Sea (UNCLOS). 1 We already have dealt with some of the political dimensions of this (see, e.g., our South China Seas tag), and I won’t rehash them here. But I do want to bring up a couple of points that seem lost in the current fray.
While UNCLOS does allow nations to claim Exclusive economic zones (EEZs) that extend 200 nautical miles out from a nation’s territorial sea, the UNCLOS is not the basis of the dispute between China and the Philippines.
One way to view the dispute is as a dispute over maritime boundary. Since the South China Seas is populated with hundreds of islands and rocks, the question is how to disentangle the overlapping claims to the seas arising from the various claims to the islands. This would clearly be a dispute involving UNCLOS.
The problem with this analysis is that China and the Philippines do not even agree over which islands and/or rocks belong to whom. The UNCLOS might be the appropriate forum to assess extent of various claims over the seas when there exists clearly delineated and accepted claims to land territories, but when it comes to disputes over actual claims over land (islands or rocks), there is little that the UNCLOS provides.
Another problem with appealing to the UNCLOS is that the the UNCLOS is really a red herring, as far as the South China Seas and China and the Philippines are concerned.
Under International Law, nations generally have the right to ratify treaties in parts by ratifying treaties with reservations – and with statements articulating its understanding of the terms of the treaty. This is the case with UNCLOS. Neither China nor the Philippines ratified the UNCLOS in full. In fact, few of nations that ratified the UNCLOS did so without some sorts of qualifying statements and reservations (see UNCLOS delcarations and statements upon ratification).
The Philippines ratified the UNCLOS under these terms:
Understanding made upon signature (10 December 1982) and confirmed upon ratification (8 May 1984) 8/ 9/
1. The signing of the Convention by the Government of the Republic of the Philippines shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines.
2. Such signing shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor of the United States of America, under and arising out of the Treaty of Paris between Spain and the United States of America of 10 December 1898, and the Treaty of Washington between the United States of America and Great Britain of 2 January 1930.
3. Such signing shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defence Treaty between the Philippines and the United States of America of 30 August 1951 and its related interpretative instruments; nor those under any other pertinent bilateral or multilateral treaty or agreement to which the Philippines is a party.
4. Such signing shall not in any manner impair or prejudice the sovereignty of the Republic of the Philippines over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto.
5. The Convention shall not be construed as amending in any manner any pertinent laws and Presidential Decrees or Proclamation of the Republic of the Philippines; the Government of the Republic of the Philippines maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippines Constitution.
6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty, independence and security.
7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation.
8. The agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under article 298 shall not be considered as a derogation of Philippines sovereignty.
In other words, Philippines subscribes to the UNCLOS with the understanding that it does not impair Philippine claim to sovereignty in the South China Sea. Statement 8 is actually a full-blown reservation in the sense that even though Philippines submit to binding arbitrary process, it would do so only where it does not impinge on Philippines sovereignty.
China ratified the UNCLOS under these terms:
Upon ratification (7 June 1996)1/:
In accordance with the decision of the Standing Committee of the Eighth National People’s Congress of the People’s Republic of China at its nineteenth session, the President of the People’s Republic of China has hereby ratified the United Nations Convention on the Law of the Sea of 10 December 1982 and at the same time made the following statement:
1. In accordance with the provisions of the United Nations Convention on the Law of the Sea, the People’s Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.
2. The People’s Republic of China will effect, through consultations, the delimitation of the boundary of the maritime jurisdiction with the States with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability.
3. The People’s Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People’s Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992.
4. The People’s Republic of China reaffirms that the provisions of the United Nations Convention on the Law of the Sea concerning innocent passage through the territorial sea shall not prejudice the right of a coastal State to request, in accordance with its laws and regulations, a foreign State to obtain advance approval from or give prior notification to the coastal State for the passage of its warships through the territorial sea of the coastal State.
Declaration made after ratification (25 August 2006)
Declaration under article 298:
The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.
Thus China ratifies the UNCLOS with the understanding that it does not impinge upon its sovereign claims to all the islands and regions of South China Seas. Further China has, as provided explicitly under Article 298 of the UNCLOS, explicitly renounced its willingness to arbitration involving broad category of explicit cases.
Article 2 of the Law of the People’s Republic of China on the territorial sea and the contiguous zone claims under Chinese sovereignty all territorial land and seas where:
The PRC’s territorial sea refers to the waters adjacent to its territorial land.
The PRC’s territorial land includes the mainland and its offshore islands, Taiwan and the various affiliated islands including Diaoyu Island, Penghu Islands, Dongsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands that belong to the People’s Republic of China.
Given the above, it is quite funny that the Philippines has referred its dispute with China to the International Tribunal on the Law of the Sea. Legally, the disputes do not come under the UNCLOS – from either the Philippines or Chinese side. Philippines can’t make a long laundry list of statements that protect its stakes and yet want to have its cake too by trying to bind China in making similar laundry list of statements…
This is a political issue that deserves a diplomatic solution. China claims South China Seas based on history. It’s ironic to see today Philippines “hosting” French archeologists to study sunken Chinese ships in its alleged territorial waters. 2 I hope the Philippine side will understand the depth of Chinese claims and come to the table with a more sincere spirit, instead of playing legal games and trying to distract from the real work that needs to be done.
Some notable comments.