Doubts cast over Manila's case in South China Sea dispute
Robert Karniol examines claim that UN tribunal lacks jurisdiction
As China and the Philippines get set to square off in The Hague next month over competing maritime jurisdictional claims, an independent legal expert has cast doubt over Manila's case.
The dispute centres on China's territorial demand encompassing most of the South China Sea/West Philippine Sea, with the Philippines holding that a sizeable chunk of that claim infringes on its own jurisdiction.
Beijing has so far held the advantage, using its political clout to obstruct any outside involvement and vastly superior security forces to inch forward its position through the use of aggressive tactics.
Manila responded in January 2013 by lodging a case before the Permanent Court of Arbitration, an intergovernmental organisation established in 1899 to resolve disputes between states. The arbitrator's involvement is derived from the UN Convention on the Law of the Sea, to which both China and the Philippines adhere, though China is snubbing the process under an opt-out clause. This strategy, which others have employed, neither blocks the proceedings nor prejudices the outcome.
Manila was directed by the court of arbitration to "fully address all issues" in its submission, due by March 30 - including "matters relating to the jurisdiction of the arbitral tribunal, the admissibility of the Philippines' claim as well as the merits of the dispute".
Central to Manila's petition is that it seeks no explicit ruling on sovereignty claims, which the court of arbitration is not empowered to resolve under the UN convention. Rather, it wants to clarify several core treaty concepts that would undercut China's ambition. However, a prominent legal scholar with no direct involvement has argued in a recent paper that the court of arbitration lacks the jurisdiction to hear the case. Dr Stefan Talmon, co-director of the Institute for Public International Law at the University of Bonn, argues that "none of the 13 points [put to the arbitrator by the Philippines] either gives rise to a dispute concerning the interpretation or application of the convention or can be addressed without considering matters which are or have been validly removed from the jurisdiction of the tribunal".