Commentary: UNCLOS unable to solve complicated South China Sea row

The United Nations Convention on the law of Sea (UNCLOS) has not resolved every past global dispute and neither will it for the South China Sea arbitration the Philippines has unilaterally initiated in The Hague.

China has elaborated on the reasons why in a position paper released in Dec. 2014. For one, the arbitration involves issues of territorial sovereignty over which UNCLOS has no jurisdiction. Hence China's non-acceptance of and non-participation in the arbitration is justified.

China supports international law and that is why it rejects the Manila initiative. This stand is taken to ensure that international law is safe from political abuse and manipulation.

However, China's stance has been labeled as being in contempt to and non-compliance with international law by some Western governments and media.

In fact, respect for international law should not mean being forced to accept an arbitration that goes beyond UNCLOS' scope.

Any arbitration ruling is unlikely to hold. This is partly because no international dispute concerning national sovereignty has so far been settled by a single arbitration based on international law, with the decades-long Palestinian-Israeli conflict as an example.

But international law is limited too. For disputes where multilateral interests instead of territorial claims are concerned, international law has hardly worked. So often, mechanisms under international conventions or pacts alleviate humanitarian crises but without eliminating their roots, as we see with the recent refugee influx into Europe.

Prof. Jack Goldsmith of Harvard University and Prof. Eric Posner of Chicago University write in the book, Limits of International Law, that international law is based on and restricted by national interests.

The South China Sea issue is an exact showcase of their opinion.

The issue is a complex one with political and historical factors to address. Negotiating a peaceful solution is the way forward in consideration of history, diplomacy, culture, energy, security and transportation.

To this end, an effective mechanism is necessary for consultation, and the Declaration on the Conduct of Parties in the South China Sea approved in 2002 by China and all members of the Association of Southeast Asian Nations needs to be reinforced.

China is not opposed to rules but safeguards them and calls for rules that are rational. However, rules to solve the South China Sea issue should not be set thousands of miles away by oceanographers or legal experts of a five-member arbitral tribunal mainly from on the basis of geological structure or the natural quality of reefs. Neither should any conclusion on any complex regional issue be drawn one-sidedly.

UNCLOS needs the protection of every member to keep it from being reduced to a geopolitical tool, and its reasonable use relies on cooperative diplomatic and political efforts. The work of the tribunal in The Hague on this front has been a huge disservice. Endi