ASEAN member like Malaysia; don’t want to resort their claim over the Spratlys to the United Nations because most part of the Spratlys is in the Philippines, besides Malaysia also overlapped their claim to the Philippines Water. One of the bases of Malaysia is the land of Sabah or North Borneo which still the Philippines have the state to regain it back, so Malaysia is not so interested to bring the issue in the higher court.
For Vietnam; they claim all part of the Spratlys including the Philippines water not according to the UNCLOS guidelines so Vietnam will not support the Philippines to raise the issue in the higher court. Besides, Vietnam knows that their claim Spratlys is belong to the Sultanate of Sulu which anytime will regain power under the Philippines so the claim if Vietnam would be invalid if the Sultanate of Sulu will rise again as the Spratlys is belong to the Ancestral Domain of the Royal Sultanate State which deprived with power by the Spain.
For Brunei, they will just back up to the Philippines because they knew that only a little portion of their Spratlys is their claim so before their claim would be affected; China must defeat the Philippines first.
For the Sultanate of Sulu; which is under the Philippines Government; they don’t need to claim as the Philippines Government do it in their behalf if they will rise back into power; the Spratlys is belong to their ancestral domains so the bases of claim for the Philippines would be more strengthen.
Philippines Fails
The Philippines will now be resorting to unilateral measures in order to secure its claim over disputed islands in the South China Sea (West Philippine Sea) in international courts after it failed to secure support from members of the Association of Southeast Asian Nations (ASEAN) in opposing China’s claim over the islands.
Members of ASEAN are in Bali, Indonesia for the 44th ASEAN Foreign Ministers Meeting.
Philippine Foreign Affairs Secretary Albert del Rosario on Tuesday said during the meeting that the region would not be able to move to the proposed adoption of the guidelines of the Declaration of Conduct (DOC) in the South China Sea signed between ASEAN and China because of Beijing’s “9-dash line" map petition before the United Nations Commission on the Limits of the Continental Shelf.
The “9-dash line" or “9-dotted line" map shows a series of nine dashes or dotted lines that form a ring around an area in the South China Sea that includes the Spratlys group, which China, Brunei, Malaysia, Taiwan, Vietnam and the Philippines have also claimed wholly or in part as their own.
“ASEAN should unite and question the definition and the reason for China’s nine-dash line petition," said del Rosario.
On Tuesday, Indonesian President Susilo Bambang Yudhoyono urged ASEAN foreign ministers to hasten the creation of guidelines on the DOC.
“We had an extensive debate because we informed [the ASEAN foreign ministers] that China’s 9-dash line map petition is a game changer to the DOC," he added.
Available legal measures
Del Rosario added that despite China’s refusal to join the Philippines in bringing the issue in front of international courts, legal measures in the United Nations Convention on the Laws of the Seas (UNCLOS) are still available for the Philippines to unilaterally pursue its case.
“I suggested that [the Philippines] go to bring the matter to international courts… and we have to do it alone," the Foreign Affairs chief added.
Indonesia, the current chair of the ASEAN Ministerial Meeting and the ASEAN Regional Forum, said that the bloc will not interfere in the Philippines’ move to go to international courts.
Indonesian foreign minister Marty Natalegawa said measures of ASEAN members to settle disputes in international courts are in “complimentarity and synergy" with the regional bloc’s rules.
“[Going to international courts to settle a claim] is a policy choice that is available to a sovereign country… and [ASEAN members] are not going to bottleneck with that effort," he added.
Del Rosario said that under UNCLOS, there are a “menu of choices" to deal with territorial disputes such as bringing the case to the International Tribunal for the Law of the Sea in Hamburg, Germany or the International Court of Justice in The Hague.
The both-parties rule
The Philippines, however, cannot resort to these courts as China has already objected to being a party to the case — the courts require both parties to participate in territorial disputes.
Del Rosario said the Philippines can resort to the Ad Hoc Arbitration and a “Special Arbitral Tribunal" made for certain kinds of disputes. There, measures do not require submission from China.
ASEAN foreign ministers have already agreed to send their legal experts to the Philippines next September to study the country’s proposal as well as to suggest an agreement that will differentiate the disputed from the non-disputed areas in South China Sea.
The Philippines had proposed the adoption of an agreement entitled “Zone of Peace, Freedom, Friendship, and Cooperation in the South China Sea" that would oppose China’s claims on the Spratlys Islands, which they call the Nansha Islands.
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