Manila has no locus standi in sea case

Article 279 does offer multiple ways for parties to resolve their disputes. It may be impractical to require a party to try all possible ways to bilaterally resolve a dispute before the "mandatory procedure" is launched, but going by established international practices, one party should at least hold talks with the other to resolve the dispute.

In the South China Sea case, the Philippines has sought the international tribunal's arbitration on as many as 13 items, although it has not held talks with China, as required by the articles and clauses of the Convention. Therefore, Manila's argument that it has abided by Article 279 and exhausted the possibility of resolving the dispute with Beijing through talks does not hold water. In fact, the Philippines has never earnestly responded to China's insistence that the dispute be settled through negotiations.

According to Article 283, when a dispute arises over the interpretation or application of the Convention, the disputing parties should proceed expeditiously to an exchange of views to settle it through talks or other peaceful means. The article also says the parties should expeditiously exchange views where a procedure for settling the dispute has been terminated without a settlement. This means disputing parties should exchange views before taking further action after the failure of negotiation procedures in order to avoid escalating the dispute owing to one party's extreme actions.

Manila's claim of having exchanged views with Beijing on the settlement of the South China Sea dispute on many occasions since 1995, as required by Article 286, is baseless. As stated by Article 286, the purpose for exchanging views is to choose suitable peaceful means such as talks and dialogue for the settlement of the dispute. But what Manila claims to be exchange of views with China since 1995 is only the "concrete contents of the dispute", which is essentially irrelevant to the peaceful means chosen to resolve the issue. Manila's other sets of evidence are also littered with such logical defects.

In short, the "peaceful means" chosen by parties for the settlement of any dispute through exchange of views do not include the "mandatory procedures". The article is aimed at preventing one party from pushing for mandatory, rather than non-mandatory, settlement of a dispute. Thus, Manila's claim that it has invited China to present the bilateral dispute to the international court for arbitration does not fall into the scope of the "exchange of views".

The fact remains that the Philippines has never even tried to fulfill its obligations to "settling the dispute by peaceful means" and "exchanging views with other parties". And the unilateral arbitration Manila seeks is in essence a contravention of the "priority application principle", as required by the Convention.

The author is a professor of international law at Southwest University of Political Science and Law, Chongqing.