Philippines Takes Territorial Fight with China to International Tribunal
By Jethro Mullen, CNN
January 22, 2013 -- Updated 1011 GMT (1811 HKT)
Hong Kong (CNN) -- The Philippines raised the stakes in its maritime territorial dispute with China by announcing Tuesday it is taking the case to an international tribunal.
The two Asian nations have been at loggerheads over China's claims of sovereignty over large swathes of the South China Sea, one of several tense disagreements between Beijing and its neighbors over waters in the region.
"The Philippines has exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of its maritime dispute with China," Philippine Foreign Minister Albert del Rosario said Tuesday.
As a result, Manila is challenging China's claims, which include the waters off the west coast of the Philippines, at an international arbitration tribunal, citing the United Nations Convention on the Law of the Sea.
Under International Law, nations generally have the right to ratify treaties in parts – by ratifying treaties with reservations. This is the case with UNCLOS. Neither China nor the Philippines ratified the UNCLOS in full. In fact, few of nations that ratified the UNCLOS did so without some sorts of qualifying statements or declarations. Philippines not sure what the Phillippines is trying to achieve as legally UNCLOS has no authority.
Source:
The Philippines ratified the UNCLOS under these terms:
Understanding made upon signature (10 December 1982) and confirmed upon ratification (8 May 1984) 8/ 9/
1. The signing of the Convention by the Government of the Republic of the Philippines shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines.
2. Such signing shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor of the United States of America, under and arising out of the Treaty of Paris between Spain and the United States of America of 10 December 1898, and the Treaty of Washington between the United States of America and Great Britain of 2 January 1930.
3. Such signing shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defence Treaty between the Philippines and the United States of America of 30 August 1951 and its related interpretative instruments; nor those under any other pertinent bilateral or multilateral treaty or agreement to which the Philippines is a party.
4. Such signing shall not in any manner impair or prejudice the sovereignty of the Republic of the Philippines over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto.
5. The Convention shall not be construed as amending in any manner any pertinent laws and Presidential Decrees or Proclamation of the Republic of the Philippines; the Government of the Republic of the Philippines maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippines Constitution.
6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty, independence and security.
7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation.
8. The agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under article 298 shall not be considered as a derogation of Philippines sovereignty.
In other words, Philippines subscribes to the UNCLOS to the extent it does not impair Philippine claim to sovereignty in the South China Sea.
China ratified the UNCLOS under these terms:
Upon ratification (7 June 1996)1/:
In accordance with the decision of the Standing Committee of the Eighth National People’s Congress of the People’s Republic of China at its nineteenth session, the President of the People’s Republic of China has hereby ratified the United Nations Convention on the Law of the Sea of 10 December 1982 and at the same time made the following statement:
1. In accordance with the provisions of the United Nations Convention on the Law of the Sea, the People’s Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.
2. The People’s Republic of China will effect, through consultations, the delimitation of the boundary of the maritime jurisdiction with the States with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability.
3. The People’s Republic of China reaffirms its sovereignty over all its archipelagos and islands as listed in article 2 of the Law of the People’s Republic of China on the territorial sea and the contiguous zone, which was promulgated on 25 February 1992.
4. The People’s Republic of China reaffirms that the provisions of the United Nations Convention on the Law of the Sea concerning innocent passage through the territorial sea shall not prejudice the right of a coastal State to request, in accordance with its laws and regulations, a foreign State to obtain advance approval from or give prior notification to the coastal State for the passage of its warships through the territorial sea of the coastal State.
Declaration made after ratification (25 August 2006)
Declaration under article 298:
The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.
Thus China ratifies the UNCLOS to the extent it does not impinge upon its sovereign claims to all the islands and regions of South China Seas. Also while China will negotiate with all neighbors with which it has territorial disputes on grounds of equity and respect, it does not submit to Article 298 arbitration as provided under the UNCLOS.
Article 2 of the Law of the People’s Republic of China on the territorial sea and the contiguous zone claims under Chinese sovereignty all territorial land and seas where:
The PRC’s territorial sea refers to the waters adjacent to its territorial land.
The PRC’s territorial land includes the mainland and its offshore islands, Taiwan and the various affiliated islands including Diaoyu Island, Penghu Islands, Dongsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands that belong to the People’s Republic of China.