Ratify UNCLOS, Philippines’ lawyer tells US

Paterno Esmaquel II
Ratifying it will 'remove China's excuse' for not following UNCLOS, says the Philippines' lawyer in its case against China, Paul Reichler

DISPUTED WATERS. US Navy personnel raise their flag during the bilateral maritime exercise between the Philippine Navy and US Navy dubbed Cooperation Afloat Readiness and Training (CARAT 2014) aboard the USS John S. McCain in the South China Sea near waters claimed by Beijing on June 28, 2014. File photo by Noel Celis/Pool/EPA

MANILA, Philippines – The Philippines’ lead counsel in its case against China, Washington-based Paul Reichler, challenged the United States to ratify the United Nations Convention on the Law of the Sea (UNCLOS) to pressure China to heed it.

In a forum organized by the US-based Center for Strategic and International Studies (CSIS) on Friday, July 11, Reichler said it is a “disgrace” that the US has not ratified the so-called Constitution for the Oceans, even as the US, one of the UNCLOS’ “main architects,” postures itself as a key player in the disputed waters.

Reichler, who handles Manila’s historic arbitration case against Beijing, said China makes a “somewhat sympathetic political argument” in disregarding the UNCLOS despite having ratified it in 1996.

For China to heed the UNCLOS is important for Reichler’s client, the Philippines, because the Southeast Asian country accuses China of disregarding the UNCLOS by asserting its 9-dash line, a non-UNCLOS-based demarcation to claim virtually the entire South China Sea.

Explaining the Chinese point-of-view, Reichler said: “Why should they be bound by the convention; why should they have to comply with it, when the United States – which is a great power and asserts important strategic interests in the South China Sea, and has pivoted in that direction – when the United States is free of it, and doesn’t have to comply with it? Why should China be subject to different rules than the United States?”

“I said that’s a political argument, not a legal one,” the lawyer said. “China’s bound by the convention because they’re a party. But why shouldn’t the United States engage in that argument?”

Reichler: ‘Mystifying, anomalous’

An international lawyer for more than 25 years, he said: “Why shouldn’t the United States remove China’s excuse, and why shouldn’t the United States ratify the convention? More than 180 states had done it. Every other great power is a party to it. It’s really mystifying. It’s anomalous, and frankly it’s a disgrace that the United States has not ratified the convention.”

Reichler’s arguments find basis in the views of Bing Bing Jia, an international law professor at Tsinghua University in China, who co-authored a book designed to explain China’s arguments to the arbitral tribunal at the Permanent Court of Arbitration, which is hearing the Philippines’ case. (READ: China’s strategy vs PH: Trial by publicity)

Speaking at the CSIS forum, Jia downplayed the UNCLOS by pointing out that many countries, for one, have not ratified this convention.

“The Law of the Sea Convention cannot cover everything in international law, isn’t it? You cannot deal with, for instance, the use of force in Iraq or Syria. You cannot expect too much from very specialized conventions such as this. That says one thing,” Jia said.

He explained: “The Law of the Sea Convention is one treaty. It parallels customary international law in many areas. That’s why in the preamble of the convention, it states very clearly: For all the matters unregulated in this convention, customary international law will help, will aid, will regulate. If it is not so, how can you explain there are so many countries standing outside the Law of the Sea Convention?”

The Chinese government itself has said the South China Sea dispute is none of America’s business because the US “is not a party concerned,” and “has not ratified the UNCLOS either.” 

Obama: ‘That’s not leadership’

The Obama administration, for its part, has said it wants the UNCLOS ratified.

Michael Fuchs, US deputy assistant secretary of state for Strategy and Multilateral Affairs at the Bureau of East Asian and Pacific Affairs, said US officials “have made our views very clear on the need to ratify UNCLOS.”

US President Barack Obama, in fact, in a commencement speech at the US Military Academy at West Point, New York on May 28, stressed the need to ratify the UNCLOS.

“You see, American influence is always stronger when we lead by example. We cannot exempt ourselves from the rules that apply to everyone else,” Obama said.

He added: “We can’t try to resolve problems in the South China Sea when we have refused to make sure that the Law of the Sea Convention is ratified by the United States Senate, despite the fact that our top military leaders say the treaty advances our national security. That’s not leadership. That’s retreat. That’s not strength; that’s weakness.”

It is not enough to say all these, however, according to Reichler.

“If everyone supports it, why isn’t it a priority to get it done? It’s not enough to say that we support it, to pay lip service to it. What’s required is to make it a priority,” Reichler said.

He explained: “Now in the South China Sea, we see why it is a priority, and why it should have been a priority over the last 30 years. But it’s not too late. There is this crisis, and there will be others. And we need to be a party to the convention so that we, with moral and political authority, can encourage with greater prospects of success, compliance with the rule of the law in international relations.” – Rappler.com 

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Paterno Esmaquel II

Paterno R. Esmaquel II, news editor of Rappler, specializes in covering religion and foreign affairs. He obtained his MA Journalism degree from Ateneo and later finished MSc Asian Studies (Religions in Plural Societies) at RSIS, Singapore. For story ideas or feedback, email him at pat.esmaquel@rappler.com.