Opinion / Op-Ed Contributors

Manila misleading in South China Sea

By Shen Dingli ( Updated: 2015-07-13 16:06

The government of the Philippines has raised a lawsuit at the International Court of Arbitration claiming that Manila is entitled to its “exclusive economic zone” (EEZ). The Hague-based court is convening a hearing on the issue.

The Philippines claims that because of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), it is qualified to possess all of its EEZ, despite the fact that there is a dispute over the Nansha Islands within this area. It has argued that it is raising the lawsuit not to settle the dispute over the islands, although it deems to qualify their sovereignty. For this lawsuit, it simply wants to make sure that it owns the exclusive fishing and other economic rights there.

The facts and logic lead in the opposite direction. Maritime exclusive economic rights are based on a nation’s sovereignty. For littoral states, those with a coast, any extended maritime economic rights have to be built on relevant sovereignty. Well before the UNCLOS came into being in 1982, China claimed and exercised its sovereignty over the Nansha Islands for centuries. For those close to the Philippines, China did so at least since the Yuan Dynasty.

In 1947 China presented the dashed line to again claim its sovereignty and Manila remained silent for decades ever since. It was 1997 when Manila revised its constitution to claim otherwise. However, for half a century since 1947 it had virtually accepted China’s claim. Then its unilateral change of position and subsequent action has worsened the China-Philippines relationship.

The UNCLOS extends economic rights to littoral states, for which both China and the Philippines could benefit. Meantime, it would also create a problem of overlapping economic rights, for which the relevant stakeholders need to negotiate. As China is entitled to sovereignty of those islands and islets, it certainly qualifies the sovereign water there. Such rights shall never be cut by the creation of the Philippine’s EEZ. Rather, should some islands qualify the island-based EEZ and if it overlaps with the Philippines’ EEZ, there are more reasons for the two countries to negotiate and settle the division of their respective economic rights in the overlapping region.

Therefore, the argument that the Philippines is entitled to the complete economic rights there is aggressive. Its argument that the International Court of Arbitration is the jurisdiction to judge the economic rights without ascertaining sovereignty is illogical. That is why China has queried the International Court’s right of jurisdiction of the on the Philippines’ demand.

China is of the view that due to the fact that it has sovereignty over those islands and islets, it is legally entitled to the nearby sovereign water and the island-based economic rights should conditions meet. The making of UNCLOS does give the Philippines some EEZ but it is never an instrument to deprive China’s established sovereignty over the rocks there. While Manila’s encroaching of China’s sovereignty should be condemned, it has gone to the wrong court to request an arbitration of its sole economic rights.

The Philippines have persisted in its provocation against China for a reason. That is due to backing from the US. The US used to support China’s war against Japanese aggression. It also supported China to bring those islands and islets in South China Sea home from Japan after defeating it. The Chinese navy used to sail American-made ships to tour the waters to claim sovereignty over the islands. Now China has to seriously question US intentions to change its commitment, challenging China’s sovereignty and associated rights.

The government of the Philippines negated its earlier commitment and occupied a number of islands some 20 years ago. Despite this, China still made a Declaration on the Code of Conduct on the South China Sea in 2002 with ASEAN, aspiring to settle disputes with each other. This illustrates China’s good will to seek a peaceful solution but not accept the Philippines’ aggression, let alone relinquish China’s economic rights associated with its sovereignty over those islands.

China respects the International Court of Jurisdiction but doesn’t think it is the right place to address sovereignty which constitutes the core of the Philippines’ suit. Beijing remains open to talk to other stakeholders directly so as to settle the dispute and restore peace in the region.

The author is a professor at and associate dean of the Institute of International Studies, Fudan University, Shanghai.

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