ICC says it has no jurisdiction over complaint vs China’s Xi over actions in South China Sea



Metro Manila (CNN Philippines, December 5) — The International Criminal Court (ICC) prosecutor says it has no jurisdiction over a complaint filed by former Philippine officials against Chinese President Xi Jinping and other Chinese officials who are accused of crimes against humanity for their “atrocious actions” in the South China Sea.

The ICC prosecutor said it cannot act on the complaint as China is not a party to the Rome Statute — the treaty which forms the international tribunal — and that the alleged crimes against humanity happened within the Philippines’ exclusive economic zone and continental shelf, which it said is not considered as part of its territory.

“Criminal conduct which takes place in the EEZ and continental shelf is thus in principle outside of the territory of a coastal state and as such, is not encompassed under … the [Rome] Statute,” the ICC prosecutor said, referring to the treaty that established the court.

It added that “territory” as defined under the Rome Statute only includes a country’s land mass, internal waters, territorial seas and the airspace above these areas and does not include the EEZ — an area 200 nautical miles from the shoreline of a coastal state wherein it exercises sovereign rights, but not sovereignty.

“Such ‘sovereign rights’ are limited to specific purposes … but do not permit the State to exercise full powers over such areas, as sovereignty might allow,” the ICC prosecutor said.

Former Foreign Affairs Secretary Albert del Rosario and former Ombudsman Conchita Morales filed in March a communication before the ICC against Xi, Chinese Foreign Minister Wang Yi and former Chinese Ambassador to the Philippines Zhao Jianhua over their “atrocious actions” in the West Philippine Sea, a portion of the South China Sea claimed by Manila.

Their communication said China’s encroachment on islands in the South China Sea, including the Spratly Islands, resulted in “environmentally destructive and illegal reclamations and artificial island building activities,” which were led by Xi.

They said Beijing caused near-permanent environmental destruction in the area, putting the livelihood of Filipino fishermen at risk.

China is not a party to the ICC and the Philippines formally left the international tribunal on March 17 — two days after the former Philippine officials filed the complaint.

Del Rosario and Morales, in a statment Thursday, said the ICC Prosecutor “did NOT dismiss our Communication.”

“The Prosecutor welcomes ‘new facts and evidence’ to proceed with the case and we are providing them,” the two former officials said. “This has only strengthened our resolve.”

A Hague-based international tribunal backed by the Permanent Court of Arbitration invalidated China’s sweeping claims to almost the entire South China Sea. It recognized the Philippines’ sovereign rights in areas within its EEZ where China has built artificial islands, prohibited Filipino fishermen from fishing and interefered in petroleum exploration.

The tribunal did not rule on which country has sovereignty over Scarborough Shoal — located around 120 nautical miles off Zambales — but said China violated its duty to respect traditional fishing rights of Filipino fishermen there.

The tribunal also said China’s large scale land reclamation and construction of artificial islands at seven features of the Spratly islands have caused “severe harm” to the coral reefs and the marine environment there.