UNCLOS does not support China's claims, US naval expert says

By Jojo Malig, ABS-CBNNews.com

Posted at Jun 06 2013 11:49 PM | Updated as of Jun 07 2013 08:51 AM

MANILA, Philippines - China is rejecting the United Nations Convention on the Law of the Sea (UNCLOS) to settle disputes in the West Philippine Sea because Beijing knows its claim is not supported by the international law, a US naval expert said Thursday.

Peter Dutton, a professor of Strategic Studies and director of the China Maritime Studies Institute at the U.S. Naval War College, said at a Center for Strategic and International Studies (CSIS) conference in Washington, DC, that China has not fully adopted UNCLOS' rules.

"China has refused international law because they know it does not support their claims," he said. "States deviate from international norms when [these] does not meet their objectives and have power to shield selves from non-compliance."

He added that instead of allowing UNCLOS and the International Tribunal for the Law of the Sea (ITLOS) to settle disputes in the region, China has been using non-militarized coercion in the West Philippine Sea since 2008 to stake its claim.

"Not history, not power, but international law should be used to decide issues in the South China Sea," he stressed.

"The most significant strength of an international treaty law is to establish norms and expected behavior," he added.

Dutton said China's use of coercion and force prompted the Philippines to bring its domestic law up to international standards.

Dr. Nguyen Dang Thang of the Vietnam Lawyers' Association told the gathering that there should be no tension in the West Philippine Sea if nations uphold UNCLOS.

'Constitution for oceans'

"UNCLOS is a constitution for the oceans," he said.

He added that China cannot selectively use UNCLOS' provisions. "If you apply UNCLOS, you apply it fully," he said.

Thang said that under international law, "There is no clear legal basis for China's claim over the South China Sea."

Henry S. Bensurto, Jr., secretary-general of the Philippine Department of Foreign Affairs' Commission on Maritime and Ocean Affairs, said any management of disputes in the West Philippine Sea must be based on international law.

"International law becomes a common language in the West Philippine Sea, yet the interpretation can differ from state to state," he said.
He added that a "future based on international law is more stable than future based on power or coercion."
"The general rule with UNCLOS is compulsory jurisdiction," he said.

Chiang Kai-shek's 9-dash line
Bensurto also dismissed China's claim on West Philippine Sea, particularly Beijing's 9-dash line map that was created by Chiang Kai-shek and renegade Kuomintang forces in Taiwan.
"[Under UNCLOS,) you are not supposed to occupy unoccupied features," he said, referring to China's claim.
"How can you have historical claims to continental shelf? A continental shelf is a modern concept," he added.

Supreme Court Senior Associate Justice Antonio Carpio earlier said China's 9-dash line claim to almost the entire West Philippine Sea violates UNCLOS.

"China's 9-dashed line claim converts the South China Sea into an internal Chinese lake, allowing China to unilaterally appropriate for itself what belongs to other sovereign coastal states, in defiance of UNCLOS," he said.

"China's 9-dashed line claim simply cannot co-exist with UNCLOS –one kills the other," Carpio said. "To uphold China's 9-dashed line claim is to wipe out centuries of progressing the law of the sea."

Dr. Xinjung Zhang, an associate professor of Public International Law at the Tsinghua University Law School, defended China's stand.
"China's arguments regarding the Philippines' claim are reasonable based on Article 286 of UNCLOS," he claimed.

Disputes under ITLOS
Article 286, however, states that any dispute concerning the interpretation or application of UNCLOS should be to an international court or tribunal, specifically ITLOS.
"If the court rules in favor of Philippines and China does not accept, the Philippines can use this in negotiations," he said, insisting that Manila and Beijing should just settle their dispute through bilateral talks.

De La Salle University professor Dr. Renato C. De Castro, meanwhile, said the Aquino administration will press on in its bid to have the dispute settled under UNCLOS and not either by force or by bilateral talks.

"Under this administration, the Philippines will not back out from the UN arbitration process," he said.

Bonnie Glaser, the CSIS' senior adviser for Asia, Freeman Chair in China Studies, praised the Philippines for bringing up the issue at an international tribunal under UNCLOS.

"Countries should take their disputes to international courts for settlements," she said.

She also expressed disappointment at the Association of Southeast Asian Nations for remaining silent on the Scarborough Shoal standoff between the Philippines and China last year.