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Development and Settlement of Disputes, The South China Sea Arbitration: the Republic of Philippines vs. the People's Republic of China

Peace at sea

By Tommy Koh – Ambassador-At-Large at Singapore’s Ministry of Foreign Affairs

The Straits Times, 3 June 2016

With the rule of law and political will, every dispute, including those in the South China Sea, can be resolved.

In 2008, I received an award from the Rhodes Academy of Ocean Law and Policy and the Onassis Foundation. I was given the Onassis Distinguished Scholar Award for my contributions to peace at sea. In this essay, I wish to share some reflections on our quest for peace at sea.

It may be useful for us to begin by reminding ourselves of the importance of ocean space to humankind. Covering over 70 per cent of the surface of the earth, the sea is indispensable to shipping and international trade. It is a principal source of our food and fuel. It absorbs carbon from the atmosphere and serves as the blue lung of the planet. It is critical to the tourist industry. It is a favourite place for humans to seek rest, recreation and happiness.

Before the advent of the 1982 UN Convention on the Law of the Sea (Unclos), there was a state of legal chaos at sea. Countries used to quarrel and, sometimes, even fight, over the breadth of the territorial sea, fishing rights, and so on. I remember that Iceland and the United Kingdom, for example, had fought a brief war over cod.

It took the Third UN Conference on the Law of the Sea nine arduous years of negotiations to arrive at a consensus on all the previously contentious issues, such as the breadths of the territorial sea and the contiguous zone, the limits of the continental shelf, as well as on some new concepts in international law, such as the exclusive economic zone, archipelagic state, transit passage, archipelagic sealanes passage and the common heritage of mankind.

In sum, Unclos is a comprehensive and authoritative statement of the modern law of the sea. This is why I have called it a Constitution for the world’s oceans. The convention has 166 state parties and the European Union. Although the United States is not a party, it recognises the convention as customary international law. It seeks to conform to the convention and expects other countries to do the same.

Unclos promotes peace at sea in three ways. First, by establishing a new, fair and equitable world order for the oceans. Second, by promoting the rule of law. Third, by promoting the peaceful settlement of disputes. The convention has some unique features. It does not allow a state party to make reservations or exceptions. This has, however, not prevented some states from making declarations at the time of their signature, ratification or accession. To the extent that the declarations are not consistent with the convention, they have no legal value. The convention prevails over such declarations.

COMPULSORY DISPUTE SETTLEMENT

The convention has one other unique feature. Under Unclos, dispute settlement is compulsory and not optional and it is an integral part of the convention. When two or more countries have a dispute over the interpretation or application of the convention, they will attempt to resolve the dispute through negotiations. However, if the negotiations are unsuccessful, a party to the dispute may refer the dispute to conciliation, arbitration or adjudication. The convention gives to every state party a choice between arbitration, the International Court of Justice and the International Tribunal for the Law of the Sea.

If a state fails to make a choice, it is deemed to have chosen arbitration. Under Unclos, it is therefore unnecessary for State A to seek State B’s consent before referring their dispute to arbitration, assuming that they have both chosen arbitration or are deemed to have done so.

Under Article 298 of the convention, disputes over sea boundaries and military activities are exempted from compulsory dispute settlement. Apart from these two exceptions, all other disputes concerning the interpretation and application of the convention are subject to compulsory dispute settlement. The bottom line is this: It is not permissible for a state which is a party to the convention to opt out of the system of compulsory dispute settlement.

What are the threats to peace at sea?

Read the remainder of the article at http://www.straitstimes.com/opinion/peace-at-sea

The writer is former president of the Third UN Conference on the Law of the Sea and chairman, governing board, Centre for International Law, National University of Singapore.

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