August 19, 2016

South China Sea territorial dispute (News analysis) (Ill)

U Khin Maung
(A retired diplomat)

Sovereign and independent states have sovereignty over three kinds of territories: land territory, sea territory and air space over its sea territory. And if there arises any maritime dispute, state-parties to the United Nations Convention on the Law of the Sea shall settle the disputes between them by peaceful means, not through the threat or use of force. At present, South China Sea dispute has been one of the top news items of the day. China, the rising superpower in the region, claims almost the entire marine resources, especially energy rich South China Sea waters. Through the South China Sea, more than U.S dollar 5 trillions worth of marine trade passes each year. The 4 Asean nations, Brunei, Malaysia, The Philippines and Vietnam and the self-ruled territory, Taiwan have the over-lapping claims over the same South China Sea.
The Philippines, in a territorial dispute in the South China Sea with its big neighbour, China, is not powerful enough to engage in state to state war or combat. So, the Philippines submitted its dispute to the United Nations-backed court of arbitration in the Hague. The United Nations backed tribunal court ruled that China’s claims to historic rights over the South China Sea Waters are not consistent with the United Nations Convention on the Law the Sea. Simply put, in this South China Sea territorial dispute, China loses and the Philippines enjoys victory. However, it is quite amazing to read that China says tribunal court ruling is invalid and not legally binding.” But a rival claimant, Vietnam welcomes the tribunal ruling. Taiwan, another rival claimant does not accept the ruling. Vietnam, an active rival claimnant welcomes the ruling claiming that the ruling defines the rule of law and urges the peaceful settlement of dispute. China, a United Nations Permanent Security Council member and a state party to the United Nations Convention on the Law of the Sea retorts that the tribunal court has no power to enforce the ruling. MR. John Kerry, the Secretary of State of the United States of America, the only super-power, in the post cold-war era, has said he would like to see the “absolute rule of law and diplomacy prevail” in this case.
First and foremost, please allow me to say that I am not a law expert. I am just a law student, who is seriously studying law, especially the international law, in spite of my very old age.
And in submitting my honest and humble views on this topic, I bear malice towards none: I present it with the love of justice and fairness and purely with academic interest from what I understand this particular case from the legal point of view.
To quote only the relevant points of Annex VII Arbitration of the United Nations Convention on the Law of the Sea. Article 1, “institution of proceedings” prescribes that “any party to a dispute may submit the dispute to the arbitral procedure provided in this Annex by written notification addressed to the other party or parties to the dispute. The notification shall be accompanied by a statement of the claim and the ground on which it is based.”
And Article 8 that requires majority of decisions reads that decisions of the arbitral tribunal shall be taken by a majority vote of its members. As regards default of appearance of one of the parties to the dispute before the tribunal or fails to defend the case, the other party may request the tribunal to continue the proceedings and to make its award. So also it is stipulated in article 9. “default of appearance”. The same article 9 clearly provides that absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. One significant provision, I would like to quote is article 10 “award”. The award of the arbitral tribunal shall be confined to the subject matter of the dispute and state the reasons on which it is based. Article 11 clearly provides that “the award shall be final and without appeal, unless the parties to the dispute have agreed in advance to the appellate procedure. It shall be complied with by the parties to the dispute.
From the afore-mentioned dispute, I, just a retiree, with no iota of authority to make any comments, have nothing to say except to follow my Ministry of Foreign Affair’s stand which clearly states that “the rule of law and diplomacy should win and prevail in this dispute”. Diplomacy always ensureswin-win benefits. Known to all and sundry, there is no good war and bad peace in the settlement of disputes.
To quote H.E Tommy T.B Koh of Singapore who has contributed all his wide wisdom and rich experience as the chairman of the conference on the law of the sea, may I express as follows:
“The world community’s interest in the peaceful settlement of disputes and the prevention of use of force in the settlement of disputes between states have been advanced by the mandatory system of dispute settlement in the UN. ‘Convention on the Law of the Sea”.
It is never too late to peaceful settlement to disputes, where there is a political will, there is a way. Where there is a conflict, between the international law, that governs the inter-state relations, and the domestic or local law, the international law prevails. It is a time-tested, and universally accepted principle of the international law.
Well, my dear reader, please allow me to submit to you, just in brief, the United Nations Convention on the Law of the Sea that provides the coastal states sovereign rights to its 12 nautical mile territorial sea measured from its baselines and its exclusive economic zone’s rights for exploring and exploiting its natural resources under the sea-bed and continguous zone’s rights and obligations. In fact, the United Nations Convention on the law of the sea is the “culmination of over 14 years of works involving participation by more than 150 countries, representing all regions of the world, all legal and political systems, all degrees of socio-economic development, countries with various dispositions regarding the kinds of minerals that can be found in the sea-bed, coastal states, states described as geographically disadvantaged with regard to ocean space, archipelagic states, island states and land-locked states. These countries convened for the purpose of establishing a comprehensive regime “dealing with resources under the sea-bed with all matters relating to the law of the sea, ……. bearing in mind that the problems of the ocean space are closely interrelated and need to be considered as a whole”.
To sum up, please allow me to propose you sir, “the mighty China, or rising super-power in the region, and our good neighbour, to propagate, and practise Lmutual respect for each other’s sovereignty and territorial integrity” as it was one of the historic and time -tested principles of peaceful co-existence, set up by China, India and Burma (Myanmar) long ago. And if there be any conflict, please put it into practice “Let amity be eternal and enmity be ephemeral, 1. Thank You, Sir.

1.    ခ်စ္စကုိ ရွည္ပါေစ ၊ မုန္းစကုိ တုိပါေစ
2.     The law of the sea, United Nations Convention the Law of the Sea
3.     Black’s Law Dictionary by Bryan A. Carrier.
4.     Central News Aisa C.N.A Satellite TV


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