The Pacific settlement of international disputes

MANILA, Philippines - Article 33 Chapter VI of the United Nations Charter provides the State parties to any dispute which is likely to endanger the maintenance of International Peace and Security must first seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

It is very unclear under the United Nations Charter that the use of force by any State party is impermissible. Furthermore, Chapter VII of the Charter provides for actions with respect to threats to the peace, breaches of the peace and acts of aggression.

The current dispute between the Philippines and China over incursions by China on a body of water belonging to the Philippines is indeed a conflict that may give rise to a dispute likely to endanger peace and security in the region. But there are many ways of attending to this dispute as stated in Article 33 Chapter VI of the UN Charter as enumerated therein.

The official statement of the government that it will bring the matter to an international body is unclear as to which body is referred to. Is it for judicial settlement? Under the Convention of the Law of the Sea (UNCLOS) there is a Tribunal to decide matters involving conflicts between State parties. But judicial settlement at this stage might be premature given what is enjoined by the UN Charter to avail of remedies outside of judicial settlement even resorting to regional agencies or arrangements.

The Philippines and China are co-signers in the Convention on the Law of the Sea (UNCLOS). That Convention stipulates and classifies the bodies of water within one State and jurisdiction by that State over certain bodies of water such as territorial waters, contiguous zone or exclusive economic maritime zone, etc. The Convention is precisely to guide State parties in determining what body of water belongs to the State over which it may exercise control or jurisdiction.

In judicial settlement, it must be emphasized that the Court has jurisdiction in contentious cases between States on the basis of the consent of the parties. International bodies such as the International Court of Justice can only exercise jurisdiction over a dispute predicated on the consent of the disputing parties. Absence such consent, the Court will be unable to assume jurisdiction. International Courts and this includes the Tribunal on the Law of the Sea vary with the procedures applicable in State or Municipal Courts wherein an aggrieved party may institute a case against another and through a process the other party is summoned to appear before the Court whereupon the case is litigated upon and decided by the Court. In International Law, the jurisdiction of the Court to hear and decide a case on the merits depends on the will of the parties. This procedure rests on International practice in the settlement of disputes and is a corollary of the sovereign equality of the States.

One is reminded of the dispute regarding the Philippine claim over North Borneo or Sabah. While the Philippine Government was anxious to elevate the matter to the International Court of Justice for resolution, Malaysia resisted and refused to give her assent in bringing the matter to the International Court. Thus, the claim of the Philippine Government has remained unresolved.