UNCLOS can't settle Philippine territorial disputes with China - expert
The online news portal of TV5
The Philippine government's plan to settle its territorial claims over the Scarborough Shoal with China using the United Nations Convention on the Law of the Sea (UNCLOS) may not work because the treaty does not contain provisions "on how to decide the competing sovereignty claims in the West Philippine Sea," said an expert on international law.
"The law of the sea convention proceeds from a premise that sovereignty is not in dispute, so you can't use the convention to justify your claims, you have to go elsewhere," Dr. Lowell Bautista, research fellow of the Australian National Centre for Ocean Resources and Security, told Interaksyon.com at the sidelines of a forum organized by the Ateneo de Manila School of Law in Makati.
Bautista added that while the UNCLOS has a compulsory settlement provision that mandates parties to peacefully negotiate disputes, it also has Clause 298 that allows a party to "opt out" from mandatory settlement.
The UNCLOS may still be helpful to address the dispute in "some" aspects, he said. What the Philippines and China can do, according to him, is resort to adjudication and arbitration by going to international tribunals like the International Court of Justice and the International Tribunal on the Law of the Sea.
"Depending on how you craft the legal question, that will determine which forum you will bring (your case)," he said. Bautista then added that "something exciting" is in the offing in the legal front concerning the Philippines’ claims on the disputed territory.
Both China and the Philippines are signatories to the UNCLOS, an internationally binding instrument that lays down the most comprehensive regime of law and order in the world's oceans and seas. It defines the rights and responsibilities of nations in their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources.
The Philippines signed the Convention on December 10, 1982 and ratified it on May 8, 1984. The UNCLOS became effective on November 6, 1994.
The Department of Foreign Affairs earlier said it is exploring all legal aspects to the country’s territorial claims on Scarborough Shoal, which is located 124 kilometers off Masinloc, Zambales. The dispute resurfaced in April after the Philippine authorities arrested some Chinese fishermen caught fishing at the shoal.
The Philippines also accused China of erecting barriers along the shoal, and of illegal fishing.
China maintains its disagreement with settling its territorial issues using UNCLOS or in any international tribunal. It said that the dispute may only be resolved through direct negotiations direct negotiations between concerned parties. Aside from the shoal, the Philippines and China - along with Vietnam, Brunei, Malaysia, and Taiwan - are also claiming parts of the South Chinas Sea.