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Legal storm over Spratly Islands

The Permanent Court of Arbitration (PCA) at the Hague ruled on Oct 31 that it has jurisdiction to hear a claim filed by the Philippines against China over a disputed area in the South China Sea.

The Hague tribunal will then hear seven of Manila’s submissions filed under the United Nations Convention on the Law of the Sea (UNCLOS) and that China’s non-participation did not deprive the tribunal of jurisdiction.

Welcoming the decision, the Philippines said it was prepared to argue the merits of its case before the tribunal, expected to take place shortly. China’s Foreign Ministry said the country would not accept any ruling from the court, accusing the Philippines of “political provocation under the cloak of law”.

The Philippines had submitted that China had prevented Philippine vessels from exploiting waters adjacent to Scarborough Shoal and Johnson Reef, two small outcrops frequented by their fishermen. In 2012, China had constructed a barrier across the entrance to Scarborough Shoal, preventing Philippine fishing boats from entering the waters.

Although the merits of the claim by the Philippines had yet to be heard or decided on by the PCA, this preliminary victory by the Philippines on the question of jurisdiction should be good news for the other states who have their own respective claims on specific areas of the Spratly Islands.

“The ruling could act to embolden and bring unity to the other claimants,” said a legal expert at the Institute for Maritime Affairs and Law of the Sea at the University of the Philippines.

The Spratly Islands have, for some time, been the subject of competing claims by China, Vietnam, Taiwan, Malaysia, Brunei and the Philippines. These islands in the South China Sea became prized possessions after it was known that they are located near sites of major offshore oil deposits.

Malaysia claims sovereignty over Layang-Layang (Swallow’s Reef), a small reef in the Spratly Islands. On this small strip of property, the Malaysian government had, since 1983, built an airstrip, a dive resort and a military installation.

The Spratly Islands are scattered over 388,500 sq km in the South China Sea, midway between Vietnam and the Philippines. Comprised of some 500 to 600 virtually uninhabited islets, reefs and shoals, they have now become Southeast Asia’s “most contentious territorial dispute”.

China has, for some time now, been building several new islands in these contested waters in a sustained effort to enlarge its footprint in the South China Sea. These man-made islands are able to support the future construction of large buildings, human habitation and surveillance equipment, including radar. Many see this continuing construction work as part of China’s long-term strategy of “power projection across the Western Pacific”.

China maintains that it has the right to build in the Spratlys because it is “Chinese territory”. It argues that Vietnam and the Philippines have built more structures in the disputed region than China, so China is free to carry out building works there as well.

In 2002, China and nine Asean nations signed the Declaration on the Conduct of Parties in the South China Sea. Some analysts, however, maintain that the declaration is non-binding and does not specifically prohibit island-building works.

Understandably, the situation in the Spratly Islands has been described “as a potential tinderbox in the region”. Located over one of the largest continental shelves in the world, the Spratly Islands archipelago is believed to contain an estimated 17.7 billion tonnes in oil and gas reserves, much larger than that of Kuwait’s reserves, at 13 billion tonnes, thereby making it the fourth largest reserve in the world.

China, Taiwan and Vietnam claim the entire archipelago, while the Philippines, Malaysia and Brunei claim sovereignty only over certain parts of the Spratly Islands.

The Philippines had filed its claim with the PCA in January this year to stop Chinese incursions into the West Philippine Sea and to nullify China’s nine-dash line, which encroaches into established Philippine maritime boundaries.

The Philippines argued that the Chinese nine-dash line was an “excessive claim in violation of international law”. They said they had to take the matter to the UN tribunal at the Hague after exhausting all other means to settle the dispute peacefully.

In a 10-page summary of its decision confirming that it had jurisdiction to hear the case, the PCA said the case “was properly constituted” and that “the Philippines’ act of initiating this arbitration did not constitute an abuse of process. It has scheduled the hearing of the merits of the case from Nov 24 to 30, and hopefully, can deliver its final decision in the middle of 2016”.

In reference to China’s decision not to attend the proceedings at the Hague, the PCA said, “China’s non-appearance in these proceedings does not deprive the tribunal of jurisdiction”.

Will China continue to boycott the proceedings at the hearing of the merits of the case and risk losing this legal battle for the second time? We have to wait and see.

The writer formerly served the Attorney-General’s Chambers before he left for practice, the corporate sector and, then, academia

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