China, Philippines need direct negotiations to solve sea row, say experts

MANILA, Philippines— Two international law experts on Friday said that countries involved in the West Philippine dispute should strike a balance and look into all the mechanisms provided for by international law, saying that negotiations would allow them to find a solution that would be satisfactory for all the claimant countries.

“The question is how can we achieve effectively a demarcation between these different states, that will please every country without resorting to force,” said Dr. Yas Banifatemi, partner at Shearman & Sterlings International Arbitration Group and head of the firm’s Public International Law Practice Group, in an interview with reporters at the sidelines of the inaugural conference of the Angara Center for Law and Economic Policy. Banifatemi was also named among the top 45 leading figures of the international arbitration bar.

Banifatemi said the importance of direct negotiations between claimant states, saying that whether they choose bilateral, multilateral, or both, engaging in negotiations still proved to be the effective means in solving disputes peacefully.

Banifatemi said that although arbitration would be a difficult option for the Philippines since China has not consented on the proposal, the Philippines had valid claims and that it should exhaust its options, including the mechanisms under the United Nations Convention on the Law of the Sea.

“Philippines definitely has a point in making those claims and the question is how it would achieve a satisfactory solution, having in mind the other states with diverging claims as well,” she said. She added that the Philippines’ valid views should be taken into account by other states, including China, and that claimant states should take a legitimate look at the views of each state to have a “starting point” in negotiations.

She also explained the possibility of the solution of joint development, where claimant states could decide to set aside the territorial disputes and look into developing the area.

“So the question is how can you achieve an arrangement which will not allow for arbitration but for instance conciliation or diplomatic negotiations like joint development,” she said.

Manila had been pushing for the maritime dispute to be brought to the International Tribunal on the Law of the Sea (Itlos), stressing the need for international mediation to resolve China and the Philippines’ respective claims over a rock formation in the West Philippine Sea. China, however, has rejected the proposal.

The United Nations Convention on the Law of the Sea (Unclos) provides for the right of coastal states to manage and develop resources within its 200 nautical miles Exclusive Economic Zone or Continental Shelf. The Philippines claims that Scarborough Shoal is within this 200 nautical miles EEZ or continental shelf of Luzon Island, and that it has effective jurisdiction and sovereignty over the area.

But China rejected the Philippines’ claims, arguing that its claims over Scarborough Shoal, which it calls Huangyan Island, on the basis of geographical proximity could not be used since it had long been dismissed by international law and practice as the principle of solution of territory ownership.

Banifatemi said, however, that though China should adhere to dispute settlement mechanisms under the Unclos.

“China should abide by Unclos, because China is bound by Unlcos,” she said.

China claims virtually all of the West Philippine Sea, which is believed to sit atop huge oil and gas reserves. China has also created an entirely new city to administer it, sparking deep concern from rival claimants.

China, Philippines, Vietnam, Malaysia, Brunei and Taiwan have overlapping claims to the areas.

Professor Tom Ginsburg, Leo Spitz Chair of International Law at the University of Chicago Law School, for his part said that he lamented how China and the Philippines were not able to settle their disputes before an international court, saying that it was an important world issue.

He pointed out however that the Philippines had a strong claim on the merits of international law.

“My understanding of the law of the sea basis of the claim is that the Philippines claim is actually very strong on the merits of international law but again there is a difference between having a substantially correct claim and a court which will so pronounce,” Ginsburg said.

He said that the country needed to seek the cooperation from other nations and continue to articulate the legal basis for the claims.

He suggested that it would be better for the Asean to have a more institutionalized infrastructure and architecture for dispute resolutions, saying it had weak dispute settlement mechanisms.

“The South China Sea issue is example number one on how a regional forum would be better than just bilateral negotiations on the basis of sovereignty and so called negotiations for mutual respect,” he said.

When asked whether China’s 9-dash claim could be used as basis for its claims, Banifatemi said she thought that it was a claim based on history and that modern international law had evolved with different principles.

“No. I don’t think so. It’s something that was done in certain circumstances by certain people in different contexts.  That’s over. They have to take international law as it exists and to achieve something that is compatible with principles of international law as it is today,” Banifatemi said.

Ginsburg, for his part, said he thought that the 9-dash claim of China did not have much merit from the point of view of the modern international law of the sea.

“I don’t think you’d find a modern international lawyer who would say it’s compatible with the general understandings of the law of the sea,” he said in a separate interview.

“But certainly the 9-dash line is not something that comports with general understandings of the law of territorial baselines and proper claims on maritime jurisdiction,” he added.

When asked about the creation of the Sansha City, he said he thought that it was an effective strategy from the point of view on the law of the sea.

“It’s a new city. So in some sense you can see that there is an internal recognition that the nine dash on its own is not enough to make a viable claim. Of course if you do have populated territory then the maritime base lines would be calculated from that place and so extending populated areas into the South China Sea is an effective strategy from the point of view on the law of the sea,” he said.

Originally posted: 4:43 pm | Friday, August 3rd, 2012