Arbitration, way forward on disputes in S. China Sea region

By: H.E. Raul S. Hernandez
Ambassador of the Philippines in Seoul

The following article was contributed by His Excellency Ambassador Raul S. Hernandez of the Republic of Philippines in Seoul for publication by The Korea Post.?Ed.

The steady economic growth of Asia Pacific--one of the world’s success stories in the post World War II era--has transformed lives and the future of millions of peoples. The Philippines and the Republic of Korea--and the relationship between our two countries--are part of this evolving story.
Yet this region is witnessing profound shifts in its strategic landscape. There are challenges and disputes, which, if not managed wisely, could bring uncertainties to the economic and security environment.
One of the most pressing challenges is keeping a predictable and peaceful maritime order, particularly in the South China Sea, one of the two main bodies of water in East Asia.

Disputes in the South China Sea are not new. However, recent unilateral actions, such as large-scale island-building, constructions of artificial structures, installation of surface-to-air missiles, and plans to commence commercial flights in some of the contested features have eroded trust and confidence among the parties and have threatened East Asian stability.
The economic, political, and environmental costs of these provocative actions cannot be ignored.
The world is looking at how East Asia will manage these tensions, for this gives a glimpse into how the region’s future would look like.
Through the years, the region has endeavored to address these challenges. In 2002, the Association of Southeast Asian Nations (ASEAN) and China signed a Declaration of Conduct (DOC) that promotes the peaceful settlement of disputes and upholds the principles of self-restraint and non-use of force among parties in the South China Sea. The political document also envisioned a Code of Conduct (COC) that would manage the disputes pending their final settlement.
Notwithstanding this understanding, tensions have escalated in the region as a result of China’s actions since 2012. These actions have been carried out without due regard for the legitimate rights of other claimant states and in violation of international law. One of the regretful results of these actions is the permanent destruction of coral reef systems in a bio-diverse region whose health has long-term implications for fisheries and economic activities of millions of fishermen depending on the sea for livelihood.
These actions undertaken in a disputed area and an important maritime commons provide the compelling backdrop for the Philippines’ advocacy for the peaceful, rules-based approach for the management and settlement of disputes in the South China Sea.
The tensions and uncertainty arising from these actions have only underlined the fact that adherence to the rule of law ? the bedrock of peace, order and fairness in modern societies ? underpins the stable and predictable security architecture that is critical to sustaining Asia Pacific’s growth.
In January 2013, the Philippines filed a case seeking to clarify maritime entitlements in the South China Sea in accordance with the 1982 United Nations Convention on the Law of the Sea (UNCLOS). In 2015, the Arbitral Tribunal set up by the Permanent Court of Arbitration in The Hague under the auspices of UNCLOS assumed jurisdiction over the case. The Tribunal is expected to issue a decision within the coming months.
China’s aggressive actions to pursue a claim with no basis under international law are at the heart of this case. China has asserted historic rights and sovereignty over areas encompassed by its so-called nine-dash line on almost the entire South China Sea. This is inconsistent with UNCLOS which states that a state can only claim historic rights over its internal waters (historic bays) and territorial sea (historic title).
A rules-based region that respects the rights of all nations, big or small, should have no room for strategic uncertainty or ambiguity that justifies actions that deny coastal states the exercise of legitimate rights and which, if unaddressed, could have broader repercussions to maritime security, freedom of navigation and unimpeded trade. The untenable situation on the ground has made clarification necessary.
For the South China Sea, that clarification rests in UNCLOS. The Law of the Sea stipulates the maritime rights and obligations of nations. The Philippines, along with other responsible members of the international community and 167 parties to UNCLOS, including the Republic of Korea, have adhered to these rights and obligations in good faith.
The arbitration case is not meant to resolve the Philippines’ territorial disputes with China. It does not ask the Tribunal to rule on questions of territory and sovereignty. Instead, it seeks to clarify maritime entitlements of coastal states as provided for by UNCLOS.
As the world’s “Constitution of the Oceans”, UNCLOS provides the legal framework on matters related to the oceans and seas. In May 2014, the Philippines and Indonesia, after twenty years of negotiations, concluded an agreement to delimit the boundaries of their exclusive economic zones (EEZs) in accordance with UNCLOS. This agreement shows what is possible when parties agree to clarify, define, and peacefully pursue their claims through a common set of rules and through international law, such as UNCLOS.
Claims that the Philippines has not exhausted efforts to discuss the South China Sea issue bilaterally with China are unfounded, if not misleading. As a matter of fact, the Philippines has tried multiple times to convene high-level meetings, both in the bilateral and the multilateral levels, to settle the issue. China’s insistence on its “indisputable sovereignty” over almost the entire South China Sea even before talks commence was a non-starter.
The Philippines has taken a constructive, open, transparent, friendly and rules-based avenue of dispute settlement, and has invited China to the arbitration process.
It is unfortunate that China has chosen not to participate in the arbitration proceedings. Having assumed jurisdiction on the case, the Arbitral Tribunal will issue a final award that is legally-binding on parties, including China.
When issued, the Tribunal’s decision will affirm UNCLOS’ guidance on the way forward in managing and resolving the disputes in the South China Sea.
The Philippines has said that it will abide by the Tribunal’s award and expects China to do the same as a way of manifesting the meaning of its “peaceful rise.”
As maritime nations, the Philippines and the Republic of Korea have worked together for a secure and rules-based maritime order in the region through mechanisms such as the ASEAN-Korea Strategic Partnership, and institutions such as the ASEAN Regional Forum (ARF) and the East Asia Summit (EAS).
The Philippines and the Republic of Korea cooperate with each other and with other countries in the region not only because, as seafaring nations, they have maritime interests to protect, but also because both countries have a stake in upholding the rule of law and building a rules-based regional security architecture that we all envision: one that is stable, predictable, and enables our peoples to live in peace and prosperity.