THE PEARL OF THE ORIENT VS.

THE SLEEPING GIANT

A reaction paper on the maritime dispute of the Phiippines and !hina
From the time States learned to navigate the treacherous waves of the sea and harnessed its
available natural resources and minerals, they have been in constant motion to set a rule of conduct for
the protection of their interests relatively dealing with the extent of their territorial waters, their seabed,
their subsoil, their contiguous zone and their exclusive economic zone. Thus, on 30 pril !"#$, the %nited
&ation 'onvention on the (aw of the Sea was adopted by the Third %nited &ations 'onvention on the
(aw of the Sea. 'urrently, there are !)) *arties to the 'onvention of which *hilippines and 'hina are
among the State *arties.
+ith the recent controversies attending the two States which apparently are now in a struggle to
ac,uire a legitimate hold over the disputed seas, the *hilippines, with all its available legal eagles,
chooses to engage a legal means of entitling itself of its right on the -xclusive -conomic .one. +hile
'hina, refuses to ta/e any legitimate stance on the issue. 0nstead, 'hina selects to assert its claim over
the disputed waters by forceful means. 1ence, with this in mind, an examination as to the ramifications of
the filing by the *hilippines of an arbitral case in the 0nternational Tribunal on the (aw of the Sea and the
cavalier attitude of 'hina in refusing to participate in the arbitral case is in order.
Remedies
The manifest acts of 'hina in dealing the controversy had posed serious threats to the sovereign
rights of the *hilippines. Their character displayed against the rightful claim of the *hilippine government
smac/s disrespect of the legal process prescribed by international law. 0n order to arrest the continuous
abuse of the *eople2s 3epublic of 'hina, the *hilippines must see/ a 4udicial recourse in the Tribunal to
aid a preventive measure from the undiplomatic means that 'hina employed.
*aragraph !, rticle $"0, Section !, *art 56 Settlement of 7isputes, %&'(8S provides that 9 if a
dispute has been duly submitted to a court or tribunal which considers that prima facie it has 4urisdiction
under this *art or *art 50, section :, the court or tribunal may prescribe any provisional measures which it
considers appropriate under the circumstances to preserve the respective rights of the parties to the
dispute or to prevent serious harm to the marine environment, pending the final decision.;
0n addition, *aragraph $ of the same provision states that 9pending the constitution of an arbitral
tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the
parties or, failing such agreement within two wee/s from the date of the re,uest for provisional measures,
the International Tribunal for the Law of the Sea or, with respect to activities in the Area, the
Seabed Disputes Chamber, may prescribe, modify or revoke provisional measures in accordance
with this article if it considers that prima facie the tribunal which is to be constituted would have
urisdiction and that the urgency of the situation so re!uires" 8nce constituted, the tribunal to which
the dispute has been submitted may modify, revo/e or affirm those provisional measures, acting in
conformity with paragraphs ! to <.;
From the words culled from %&'(8S itself, there is no escape that measures may be had in
order to prevent further invasion of the *hilippines2 rights over its waters. 0t is clear that the *hilippine
=overnment will not be prevented to exercise any of its rights granted by international law more so of the
%nited &ations 'onvention on the (aw of the Sea.
0t is further submitted that rights which the *hilippines have over its -xclusive -conomic .one are
definitely outlined under rticle :) of the %&'(8S. Thus, rights of states falling under said provision are
the following, namely>
?a@ sovereign rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or nonAliving, of the waters super4acent to the seabed and of the
seabed and its subsoil, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water, currents and windsB
?b@ 4urisdiction as provided for in the relevant provisions of this 'onvention with regard to>
?i@ the establishment and use of artificial islands, installations and structuresB
?ii@ marine scientific researchB
?iii@ the protection and preservation of the marine environmentB
?c@ other rights and duties provided for in the 'onvention.
Propriet"
0t is a recognized principle in international law that disputes must be settled in a diplomatic
manner. The use of hostile methods may become a threat to international peace and security, not to
mention the rupture of several diplomatic relations during the duration of any armed conflict. Thus, the
use of arms, although it may become a legitimate means of last resort, must at all cost be avoided.
-xtinction of human race is too high a price for a contesting nation.
%nder rticle $C", *art 56, Settlement of 7isputes, %&'(8S, it succinctly provides that 9States
#arties shall settle any dispute between them concerning the interpretation or application of this
Convention by peaceful means in accordance with rticle $, paragraph 3, of the 'harter of the %nited
&ations and, to this end, shall see/ a solution by the means indicated in rticle 33, paragraph !, of the
'harter.;
There is no ,uestion that the path by which the *hilippine =overnment traversed fits the mode by
which disputing states must settle their indifference. 1owever, the ,uestion lies on whether the application
for an arbitral award in favour of the *hilippine =overnment is proper to win the case and be 4udged as
the rightful state in the case at hand. 0t is on this unfortunate occasion that the *hilippine =overnment
may have rushed a dangerous 4udgment.
gain, a perusal of the afore,uoted provision stings a biting reality that State *arties have a free
hand to choose what means are to be observed in fixing a dispute. The provision provides that such
dispute must be by peaceful means so that, the *hilippine =overnment has a myriad of choices in ending
the controversy by way of diplomatic relations. The *hilippine =overnment must have resorted and
exhausted all outAofAcourt settlement before submitting its application to the Tribunal.
rticle $#! of the %&'(8S states 9if the States *arties which are parties to a dispute concerning
the interpretation or application of this 'onvention have agreed to see/ settlement of the dispute by a
peaceful means of their own choice, the procedures provided for in this #art apply only where no
settlement has been reached by recourse to such means and the agreement between the parties
does not exclude any further procedure.;
Furthermore, rticle $":, %&'(8S declares that 9any dispute between States *arties concerning
the interpretation or application of this 'onvention may be submitted to the procedures provided for in this
section only after local remedies have been e$hausted where this is re,uired by international law.;
humble opinion is offered on this paper that State *arties must first have agreed to conduct a
discussion on the settlement of the controversy and failure to reach any agreement thereto will give birth
to a case which would be ripe for the Tribunal to decide. The recalcitrant behaviour of 'hina and the
aggressiveness of the *hilippines in filing the application will lead to no better end.
#urisdiction and $indin% Effect
There is no ,uestion that both *hilippines and 'hina are signatories of the %nited &ations
'onvention on the (aw of the Sea. %nder the honoured principle of pacta sunt servanda, it is but rightful
for both states to observe in good faith the 'onvention and all its necessary incidents. The observance of
the %&'(8S and 0T(8S is an obligation erga omnes, where a State party to a multilateral treaty owes in
any given case to all other State *arties to the same treaty, in view of their common values and concern
for compliance, so that a breach of that obligation enables all these States to ta/e action. Thus, %&'(8S
and 0T(8S will be forever binding to the *hilippines and 'hina, unless any of the *arties withdraw its
signature in said 'onvention.
0t is of public /nowledge that the *hilippine =overnment has already raised the issues before the
tribunal and that 'hina remains uncooperative and refuses to recognize the apparent case filed against
them. 0n view of this peculiar circumstance, two ,uestions hinges in the settlement of the controversy>
first, whether or not the Tribunal can ac,uire 4urisdiction over 'hina, and second, whether or not 4udgment
will be binding against 'hina in case the settlement is ruled in favour of the *hilippines.
rticle :< ?:@ of the 3ules of Tribunal of the 0nternational Tribunal for the (aw of the Sea states
that 9+hen the applicant proposes to found the 4urisdiction of the Tribunal upon a consent thereto yet to
be given or manifested by the party against which the application is made, the application shall be
transmitted to that party" It shall not however be entered in the List of cases, nor any action be
taken in the proceedings, unless and until the party against which such application is made
consents to the urisdiction of the Tribunal for the purposes of the case";
The rules itself is enlightening that the need for any interpretation or construction is of no
moment. 0t is crystal clear that for the Tribunal to ac,uire 4urisdiction over the case, 'hina must have to
give its consent. 8therwise, the Tribunal will ac,uire no 4urisdiction and has no title to proceed with the
case and render a decision. +orst, perhaps, is the fact that any proceeding granted for that matter will be
a mere exercise of futility, thus, ma/ing its decision a scrap of paper and devoid of any international legal
significance.
7ecisions of the Tribunal are binding and effective per se, but any decision rendered because of
lac/ of 4urisdiction is a nullity.
The maritime dispute &et'een the
Repu&ic of the Phiippines and the
Peope(s Repu&ic of !hina
Submitted to>
tty. Dudiel *are4a
*rofessor of (aw
'ollege of (aw
%niversity of 'ebu
Submitted by>
=eeAnn (im Dugan
D7 00
'ollege of (aw
%niversity of 'ebu