By Allen Yu
Why the recent ruling from The Hague on jurisdiction is hardly a victory for the Philippines.
When the Permanent Court of Arbitration in The Hague recently announced that it would take “jurisdiction” over Philippines’ arbitral claims against China, many reported the decision as a victory for the Philippines and as a triumph of the “rule of law.” I beg to differ. The Court, on the contrary, has muddled, not upheld, international law, and by trivializing the states’ duty to negotiate in good faith – as enshrined in the U.N. charter, stipulated in the UNCLOS, and specifically agreed to between the parties – has greatly damaged the prospect for peace, cooperation, and a final resolution of the disputes.
China’s 9-Dashed Line
By far the most serious and important of the Philippines’ claims are allegations that China has no historic rights to the South China Sea under the UNCLOS. More specifically: 1.) China is not entitled to maritime rights beyond the sui generisrights provided under the UNCLOS; and 2.) China’s historical “9-dashed” line contravenes the UNCLOS.
The Chinese side has refused to participate on the ground that UNCLOS does not cover sovereignty issues, and that Article 298 specifically guarantees signatories the right to opt out from compelled arbitration over “disputes … involving historical bays and titles.”
The Court upheld jurisdiction anyway, saying that it will make its ultimate decision based on an assessment of China’s “historic titles” on the merits. Despite conceding that it had no jurisdiction to arbitrate any issue involving territorial titles, the Court somehow believed that it had power to adjudicate whether China’s potential claims to “historic waters” is valid.
This is a truly unprecedented and remarkable result!
Read the full story at The Diplomat