'Philippines lacks legal ground to go to tribunal'

By Yi Ping, Peking University School of Law

Posted at May 12 2012 07:36 PM | Updated as of May 13 2012 03:38 AM

The Philippines lacks legal ground to go to tribunal and China has no obligation to accept the invitation

The Philippine Department of Foreign Affairs (DFA) recently announced its decision to invite China to the International Tribunal for the Law of the Sea (ITLOS). China’s Foreign Ministry has replied that Huangyan Island is China’s inherent territory, thus there is no such issue of taking the dispute to the ITLOS. Indeed, the Philippine move lacks legal ground. Its purpose is merely to amplify and complicate the situation. China, therefore, has no obligation to accept the invitation.
To begin with, the Philippine government has extended the invitation by invoking theUnited Nations Convention on the Law of the Sea(UNCLOS). Section 2 of part XV of the UNCLOS stipulates that if no settlement can be reached by recourse to peaceful means including conciliation, the dispute can be submitted at the request of any party to the dispute to international adjudication or arbitration, or other compulsory procedures entailing binding decisions. At the same time though, article 298 of the Convention prescribes optional exceptions to compulsory procedures.
In fact, as early as on 25 August 2006, the Chinese government submitted to the Secretary General of the United Nations a written statement which, on the basis of article 298 of the Convention, has made it clear that China does not accept international adjudication or arbitration as described in section 2 of part XV of UNCLOS in disputes described by point 1 (a), (b), (c) of article 298, i.e., disputes concerning maritime delimitation, territory and military activities. Therefore, the Chinese government has no obligation to take up the invitation from the Philippines. Even if the Philippines does bring the case to ITLOS or international tribunals, the Chinese government has no obligation to appear in the tribunal. The Philippine government, fully aware of this consistent position of the Chinese government, still had its own way to put forward the invitation. The purpose is nothing but to discredit the Chinese government as ignoring international judicial system and rejecting dispute settlement through legal means.
Let’s take a step further. Even if the Chinese government agreed to take the Huangyan Island dispute to international adjudication or arbitration, the Philippine government won’t be able to counter China’s claim for its lack of judicial justifications. There are three reasons for this:
First, numerous historical materials have proved that China was the first to discover Huangyan Island and name it. The Philippine government has no way to deny this, thus it resorted to the Palmas Island Case, arguing that discovery of a real estate generates only initial rights, while full sovereignty could be established only through a long time of sustained and peaceful exercise of state power. On this ground, the Philippine government claimed that China has not met this requirement, thus can not be regarded as having exercised effective jurisdiction over Huangyan Island. However, the Palmas Island Case is only one of the many cases of international arbitration ascertaining sovereignty ownership. It was soon followed by Clipperton Island Case in 1931 and Eastern Greenland Case in 1933. In the Clipperton Island Case, in particular, the arbitrator pointed out that the measurement of effective control over the occupied place should be in light of the actual conditions there. For instance, some areas are inimical for human habilitation while others are not. For the latter, the occupiers enjoy absolute and undisputed ownership from the very first moment.
As it is known to all, the Huangyan Island is an uninhabited island, thus the requirement for its effective occupation is lower. Discovery and naming by China already constitute effective basis for the sovereignty over the island under international law. The Philippine side, in defiance of this, falsely argued that China has not exercised effective jurisdiction.
Second, the Philippine government had never challenged the fact that the Huangyan Island is China’s territory until 1997. On contrary, it once expressed for many times that the Island was outside the Philippine territory. For example, on the maps officially published by the Philippine authority in 1981 and 1984, the Huangyan Island was marked outside Philippine borders. A letter written by the then Philippine Ambassador to Germany on 5 February 1990 to a radio amateur reads clearly that the Huangyan Island, according to the Philippine Mapping and Resource Information Authority, is not within the scope of territorial sovereignty of the Philippines.
The documents issued by the Philippine Mapping and Resource Information Authority on 10 October 1994 confirmed again that the territory and sovereignty of the Philippines as defined by the article 3 of the Treaty of Paris signed on 10 December 1898 did not include the Huangyan Island. It was till April 1997 that the Philippines started claiming that the Huangyan Island is within the 200 nautical mile Exclusive Economic Zone (EEZ) and therefore Philippine’s “inherent territory.” Such self-contradictory behaviors by the Philippine government before and after 1997 are clear violation of the estoppel principle of the international law and therefore null.
Moreover, the attempt by the Philippine government to base its sovereignty claim over islands on the EEZ regime is against the principle of “the land dominates the sea” under international law. The maritime rights are born out of land-based rights and the scope of EEZ was set by a country’s territorial sovereignty over land and islands. A country can not claim the territory of other countries’ simply because the part is located in its own EEZ. The Philippines’ argument has reversed cause-and-effect relationship.
Third, the Philippines has used other factors such as maps, flag raising, lighthouse construction and domestic legislation as proof for its sovereignty and jurisdiction over the Huangyan Island. Yet these arguments are not convincing either.
A map in itself is not a proof for sovereignty, but if it is adopted by the court, the information it contains can back up the scope of exercising sovereignty, thus having the efficacy as evidence. Having said so, the previous maps from the colonial age as mentioned by the Philippine government were not acknowledged by the then colonial government and therefore had no official effect. With regard to flag-raising and lighthouse-building, the judgement of the Minquiers and Ecrehos Case by the International Court of Justice in 1953 has already shown that these are not sufficient to prove a country’s effective exercise of national sovereignty.
In addition, in 2009, the Philippine Congress passed an Archipelagic Baselines Law, by which it unilaterally declared that Huangyan Island and Nansha Islands were the Philippines’ territory. Although domestic legislation is a sovereign behavior, its efficacy becomes doubtful if there is strong opposition from countries concerned. If every country is permitted to include other countries’ territory into its own through domestic legislation, there will be no defined national borders in the world and countries will get stuck in incessant disputes.
Lastly, there is one possible misunderstanding that needs to be clarified. The Huangyan Island is about 124 nautical miles from Luzon Island of the Philippines, and about 472 nautical miles from the nearest Chinese mainland coast. However, proximity bears no weight on sovereignty ownership because sovereignty over islands is established by legal relations rather than geographical proximity. This is a point that the Philippine government has to accept.
To sum up, the Chinese government has no obligation to take up the invitation from the Philippine side as to submit the Huangyan Island dispute to international adjudication or arbitration. Even if the Chinese government agreed to do so, the Philippines, whose claim is in obvious shortage of legal basis, will not be able to counterbalance China’s sovereignty claim over the Huangyan Island.
(The article was first published by the China News Agency on April 27, 2012. The author is a lecturer at the School of Law, Peking University)