A Case Study on the South China Sea Case: Issues & Solutions

This article deals with the arbitration case of the South China Sea. The dispute is regarding the legal basis of maritime rights and entitlements in the South China Sea, the status of certain geographic features in the South China Sea, and the lawfulness of certain actions taken by China in the South China Sea

The South China Sea dispute has become one of the world’s most dangerous spot. Six claimants including China contend for control over numerous small land features and resource-rich waters which has steadily increased the tension in the recent years. China, Vietnam, the Philippines, Taiwan, Malaysia, and Brunei all have competing claims. Most of these contending countries have been aggressive in recent years, but China has been extremely bold in bringing out broad claims to sovereignty and rights to land features and waters in the South China Sea.[1]China has backed its claims with island-building and naval patrols.[2] The area is becoming a dangerous point, with potentially serious global consequences.[3]

This article deals with the arbitration case of the South China Sea. The dispute is regarding the legal basis of maritime rights and entitlements in the South China Sea, the status of certain geographic features in the South China Sea, and the lawfulness of certain actions taken by China in the South China Sea.[4] The basis for this arbitration is the 1982 United Nations Convention on the Law of the Sea (the “Convention” or “UNCLOS”).[5] China and Philippines are parties to this convention, the Philippines having ratified it on 8 May 1984, and China on 7 June 1996. The Convention was adopted as a “constitution for the oceans,” in order to settle all issues relating to the law of the sea.[6]With the rise in tension between China and the Philippines and other claimant states the situation has acquired international attention. China, through its “nine-dash line” has claimed the sovereignty over the islands and rocks in South China. Concerns about security and resources have driven tension in the claimant countries.[7]

In 2013, Philippines invoked remedial provisions in UNCLOS and brought 15 claims against China before a UNCLOS arbitration tribunal at the Permanent Court of Arbitration in The Hague. China immediately announced its opposition to the Philippines action and said that the right way of resolving the disputes is through bilateral negotiations; china further said: “it will never change its position of non-acceptance and non-participation in the arbitration.” Although China did not participate in the proceeding but issued a detailed “Position Paper” on December 7, 2014, along with other statements. An important question the case presented was whether the UNCLOS arbitration tribunal had “jurisdiction” to decide the 15 claims. The tribunal, however, concluded that it has jurisdiction over the Philippines’ case—but over only seven claims. It did not accept jurisdiction over the other eight claims, which includes one of the most important claims by China i.e. China’s famous “nine-dash line. China rejected the jurisdiction of the Tribunal as “null and void” with “no binding effect on China,” and accused the Arbitral Tribunal of having “abused procedures and violating the legitimate rights that China enjoys as a Party to the UNCLOS” and “eroded the integrity and authority of the UNCLOS.”[8] It labeled the Philippines’ initiation of the arbitration “a political provocation under the cloak of law” and called on the Philippines to resolve its disputes with China “through negotiations and consultations.”[9]During the four days of oral argument in November 2015, no one from China appeared or participated.

Three of the most important from the fifteen claims by the Philippines can be summed up as:[10]

(1) declares that the Parties’ respective rights and obligations in regard to the waters, seabed and maritime features of the South China Sea are governed by UNCLOS and that China’s claims based on its “nine-dash line” are inconsistent with the Convention and therefore invalid;

(2) determines whether, under Article 121 of UNCLOS, certain of the maritime features claimed by both China and the Philippines are islands, low tide elevations or submerged banks, and whether they are capable of generating an entitlement to maritime zones greater than 12 M; and

(3) Enables the Philippines to exercise and enjoy the rights within and beyond its exclusive economic zone and continental shelf that are established in the Convention.

Tribunal’s Award

On July 12, 2016, the Tribunal issued its Award and rejected China’s claims over the south china sea. It was considered that the tribunal’s decision will be an important step in the South China dispute as it will provide a law- based solution to the most contentious issues. However, its decisions demonstrate that the arbitration tribunal, as well as law, can make only a very limited contribution to resolving the South China Sea crisis.

The Tribunal has taken into consideration three preliminary issues before assessing its jurisdiction. The first one is that, the Tribunal found that both the Philippines and China were parties to NNCLOS and this are bound by the dispute resolution procedures in its Part XV w.r.t. the disputes concerning the interpretation or application of UNCLOS. Relatedly, it was found that neither of the parties made a written declaration choosing a different form of dispute resolution under the Section 1 of part XV of UNCLOS. Therefore, the Tribunal held that the parties had agreed to arbitration.[1]

Secondly, the Tribunal held that China’s refusal to accept the arbitration did not bar it from considering the Philippines claims because Article 9 of Annex VII to UNCLOS provides that “absence of party or failure of party to defend its case shall not constitute a bar to the proceedings.”[2] The tribunal also observed, however, that its obligation under Article 9 to satisfy itself of its own jurisdiction prevented it from entering a default judgment. To ensure that each party had a full opportunity to present its case, the Tribunal thus established certain procedures to safe China’s procedural rights, which included providing china with all documentation produced in the arbitration and full right to comment on any documentation or issue that arose in the arbitration.

The Tribunal acknowledged that it also had to ensure that China’s non-appearance did not prejudice the Philippines. The Tribunal’s chief concern in this regard was to convey potential criticisms of the Philippines’ arguments so that the Philippines did not lose the opportunity to develop its position in response to what otherwise would likely have been.[3]

Conclusion

In the immediate aftermath, the reactions indicate little hope that the South China Sea Award will result in a period of peaceful management of the tangled disputes within the South China Sea. China has loudly condemned the Award and a joint statement from ASEAN and China did not even mention it. Somewhat more encouraging are the preparatory talks that have taken place between the Philippines and China.[4]

It has long been recognized by those who have a significant history with the South China Sea disputes that if the numerous maritime features in the South China Sea were all categorized as low-tide elevation or rocks, the result would be that the 200 nm zones in the region would be measured from the mainland coasts. This would cause almost all of the maritime claim disputes to become bilateral, rather than multilateral, which could in turn create a possibility for resolution and de-escalation. Part of this as well is that the nine-dash line be without legal effect. As of 2009, the South China Sea ASEAN states advocated such a position.[5] In light of the Tribunal’s ruling, this could be a potential path forward.

Article 121(3) was a provision of deliberately negotiated vagueness, thus Tribunal’s rock/island criteria can be viewed perhaps as “missionary” work. The rock or island criteria in the Award may result in states able to more readily reach maritime boundary agreements and adjudicative bodies more readily make such determinations. It will be future tribunals, courts, and state practice that will determine whether this “missionary” aspect of the Award finds favor.

Of final note, concerns about whether the Award and China’s rejection of it has undermined confidence in UNCLOS dispute resolution procedures are perhaps misplaced. Subsequent to the commencement of the South China Sea Arbitration, three parties have brought cases before ITLOS and two have commenced UNCLOS, Annex VII arbitration cases.

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[1] Limits of law in the South China Sea, Paul Gewirtz; East Asia Policy paper 8, 2016. https://www.brookings.edu/wp-content/uploads/2016/07/Limits-of-Law-in-the-South-China-Sea-2.pdf

[2]Article- Why is the South China Sea contentious?

[3]Article- Why is the South China Sea contentious?

[4]The Republic of the Philippines v The People’s Republic of China; PCA case nº 2013-19; in the matter of the south china sea arbitration.

[5] United Nations Convention on the Law of the Sea, 10 December 1982.

[6]The Republic of the Philippines v The People’s Republic of China; PCA case nº 2013-19; in the matter of the south china sea arbitration.

[7]The South China Sea Dispute: A Brief History, By Sean Mirski. https://www.lawfareblog.com/south-china-sea-dispute-brief-history

[8]Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (7 December 2014)

www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml

[9]Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (7 December 2014)

www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml

[10]The Republic of the Philippines v The People’s Republic of China; PCA case nº 2013-19; in the matter of the south china sea arbitration.


[1] Ben Love, Republic of the Philippines v. The People’s Republic of China, Award on Jurisdiction and Admissibility (Perm. CT. Arb.), 55 International Legal Materials 805–921 (2016).

[2] United Nations Convention on the Law of the Sea art. 9, Dec. 10, 1982, 1833 U.N.T.S. 3, 21 I.L.M. 1261.

[3]Ben Love, Republic of the Philippines v. The People’s Republic of China, Award on Jurisdiction and Admissibility (Perm. CT. Arb.), 55 International Legal Materials 805–921 (2016).

[4]The South China Sea Arbitration | ASIL, , /insights/volume/20/issue/17/south-china-sea-arbitration (last visited Jul 10, 2020).

[5]Home | PCA-CPA, , https://pca-cpa.org/en/home/ (last visited Jul 10, 2020).