US refused to sign Unclos

Mariano Carrasco

IT is comical that the Americans keep on saying that the arbitral decision regarding the West Philippine Sea or South China Sea is legally binding upon the Chinese. It even appears that it is insistent on enforcing the decision or issue, and in the past, the Americans appeared ready to strike China militarily. The Americans have made a big issue out of this, and this conflict is clearly being used by them as an excuse or added reason why Edca should be implemented, thus allowing them to put up military bases or forces in Lumbia and other parts of the Philippines.

But the surprising fact is, the United States, along with a few other countries, have refused to sign the convention or agreement on the law of the sea. Its legislature or the American Senate has refused to approve Unclos. Therefore, it has no legal nor moral basis to claim that the arbitral decision which affirms Unclos should be binding on China. The US, not being a signatory or a party to the Unclos, has no business discussing the enforcement of the terms thereof, much less enforcing the effects of any unilateral decision based on the Unclos.

It is not only Unclos or the Law of the Sea which the Americans have refused to sign or ratify, despite approval or ratification by the majority of the world’s countries. The United States has also refused to sign the Kyoto Protocol, an international agreement on climate change which seeks to control carbon emissions and other pollutants.

One of the things which the mass media, and even commentators on the China issue, including Justice Antonio Carpio, does not say is that under international law any decision against any party to a treaty or convention can only be binding on that party if the same had given its consent to be sued or had submitted to its jurisdiction. Legally then, China is not bound to comply with the arbitral decision since it had not submitted to the arbitral court’s jurisdiction and have not consented to the institution of the suit. That is clearly the reason why this present government now cannot even insist on enforcing the decision and its only remedy is to seek a bilateral negotiation with China. Not even the UN or United Nations can force China legally to accept the arbitral decision. Assuming that the UN would insist on enforcing the arbitral decision, it needs to seek the approval of the Security Council, and nothing can come out of it if China or Russia vetoes the enforcement action.

Through the centuries, we have learned so much about the American intentions or motivations on any international dispute. It has always been the American business and self-interest that is the primary consideration. The Americans fought against Spain, not because they loved the Filipinos and other colonies under Spanish control, but because they wanted to grab the colonies’ resources and expand their markets. On the China issue, the Americans seem to be supporting us strongly against China, but look what it wants  us to do. The Americans want us to allow their foreign military forces and missiles  to be stationed back in the Philippines, including Lumbia, here in Cagayan de Oro.

 (Mariano B. Carrasco is a lawyer based in Cagayan de Oro.)