Wednesday, July 8, 2015

China’s historical claim over South China Sea invalid under UNCLOS -- DFA Secretary

From the Philippine News Agency (Jul 8): China’s historical claim over South China Sea invalid under UNCLOS -- DFA Secretary

The Philippines has debunked China’s use of historic right to back its far-reaching claims in almost the entire South China Sea, saying it is not recognized by international law, specifically the United Nations Convention on the Law of the Sea (UNCLOS).

Speaking at the first day of the crucial week-long hearing that aims to persuade the judges of the Permanent Court of Arbitration to assume jurisdiction on its case in The Hague, Netherlands on Tuesday, Philippine Foreign Affairs Secretary Albert del Rosario said the 1982 treaty renders China’s historic claim as invalid.

The convention, Manila’s top diplomat said, “does not recognize, or permit the exercise of, so called ‘historic rights’ in areas beyond the limits of the maritime zones that are recognized or established by UNCLOS.”

“Sadly, China disputes this in both word and deed,” Del Rosario said while he explained the reason for the Philippines’ decision to seek arbitration and why the court should assume jurisdiction over the country’s case.

UNCLOS said that coastal states are allowed to explore, exploit and manage areas within 200-nautical miles from its coast.

China, Del Rosario said, “claims that it is entitled to exercise sovereign rights and jurisdiction, including the exclusive right to the resources of the sea and seabed, far beyond the limits established by the Convention, based on so-called ‘historic rights’ to these areas.”

He also complained of Beijing’s increasing aggressiveness in asserting its claims as it already overlaps with Philippine areas covered by the UN-sanctioned UNCLOS.

“Whether these alleged ‘historic rights’ extend to the limits generally established by China’s so-called 'nine dash line', as appears to be China’s claim, or whether they encompass a greater or a narrower portion of the South China Sea, the indisputable fact, and the central element of the legal dispute between the Parties, is that China has asserted a claim of historic rights’ to vast areas of the sea and seabed that lie far beyond the limits of its EEZ and continental shelf entitlements under the Convention,” Del Rosario said.

The DFA chief lamented that China has even “acted forcefully” to assert its so-called right “by exploiting the living and non-living resources in the areas beyond the UNCLOS limits while forcibly preventing other coastal States, including the Philippines, from exploiting the resources in the same areas -- even though the areas lie well within 200 nautical miles of the Philippines’ coast” but hundreds of miles beyond Beijing’s EEZ or continental shelf.

Del Rosario stressed that any recognition of such “historic rights” conflicts with the very character of UNCLOS and its express provisions concerning the maritime entitlements of coastal States.

China has pursued its activities in these disputed maritime areas with overwhelming force,” he said.

“That is why it is of fundamental importance to the Philippines, and we would submit, for the rule of law in general, for the Tribunal to decide where and to what limit China has maritime entitlements in the South China Sea; where and to what limit the Philippines has maritime entitlements; where and to what extent the Parties’ respective entitlements overlap and where they do not,” he added.

China, which refused to participate in the legal proceedings, has questioned the Tribunal’s jurisdiction over the case, saying sovereignty and maritime delimitation are beyond its scope.

Del Rosario countered that the Philippine case does not require or even invites the Tribunal “to make any determinations on questions of land sovereignty, or delimitation of maritime boundaries.”

China frowns on any effort to bring the disputes to any multilateral forum, such as arbitration, insisting on direct talks with claimants to the South China Sea, which also includes Vietnam, Malaysia and Brunei. Taiwan, which is considered as China’s renegade province, is also a claimant.

Del Rosario said the Philippines, in nearly two decades, tried to engage China in bilateral talks and exhausted all efforts and avenues to resolve the maritime row, but all options have failed.

At one point, Del Rosario even recalled that in one of the earlier bilateral negotiations between the Philippines and China in the 1990s, Beijing has agreed to resolve their disputes peacefully under the ambit of the UNCLOS.

The talks happened two years after China seized and built structures on the Mischief Reef -- a low-tide elevation located 126 nautical miles from the Philippine island of Palawan and more than 600 nautical miles from the closest point on China’s Hainan Island.

“As the then Chinese Vice Minister for Foreign Affairs, Mr. Tang Jiaxuan, stated two years later during bilateral negotiations, China and the Philippines should ‘approach the disputes on the basis of international law, including the United Nations Convention on the Law of the Sea, particularly its provisions on the maritime regimes like the exclusive economic zone,’” Del Rosario said.

The same Chinese commitment was even reflected in a Joint Communiqué issued in July 1998 upon completion of bilateral discussions between then Foreign Secretary Domingo Siazon and Tang, who later became China’s Foreign Minister.

An excerpt of that document was quoted by Del Rosario as follows: “The two sides exchanged views on the question of the South China Sea and reaffirmed their commitment that the relevant disputes shall be settled peacefully in accordance with the established principles of international law, including the United Nations Convention on the Law of the Sea.”

The country, he added, has also been persistent in seeking a diplomatic solution under the auspices of Association of South East Asian neighbors, of which it is a member, as well as claimants Vietnam, Malaysia and Brunei, and Singapore, Thailand, Indonesia, Cambodia, Laos and Myanmar.

Del Rosario said the most that has been achieved was the issuance in 2002 of a “Declaration on the Conduct of Parties in the South China Sea,” which aims to prevent armed conflicts.

He pointed to China’s “intransigence” in the 13 years of subsequent multilateral negotiations as the reason for not turning the declaration into a legally-binding code of conduct and for making that goal “nearly unattainable.”

“Regrettably, neither the bilateral exchanges…, nor any of the great many subsequent exchanges, proved capable of resolving the impasse caused by China’s intransigent insistence that China alone possesses maritime rights in virtually the entirety of the South China Sea, and that the Philippines must recognize and accept China’s sovereignty before meaningful discussion of other issues could take place,” Del Rosario said.

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