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The little known legal battle over the South China Sea

While the world’s attention has focused on US and Australian naval and air patrols challenging China’s claim to 90% of the South China Sea, the Philippines has taken China to court. So far, David has got Goliath on the defensive.

The case is being heard — sort of — at the Permanent Court of Arbitration in The Hague which was established long ago (1899) to help secure “pacific settlement of international disputes”. The function of the Court is to facilitate fact-finding and conciliation between states. So far, the arbitral tribunal appointed to hear the Philippines’s case against China has held half a dozen meetings.

The case kicked off in January 2013 when the Philippines served China with notice that it intended to commence legal proceedings against it pursuant to Annex VII of the UN Convention on the Law of the Sea. That annex established rules for settling maritime disputes. The plucky Filipinos described the issue as a “dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea”. A month later, China returned the Philippines’ notification under cover of a diplomatic note stating that it would neither accept nor participate in the arbitration process. Beijing undoubtedly hoped that would be the end of the matter, but the Court decided that Annex VII allowed for proceedings to continue even if “one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case”. Score one for the Filipinos.

Rather than be left completely outside the proceedings, in December 2013 China published a position paper arguing that the tribunal lacked jurisdiction to consider the Philippines’ submission: the essence of the case was territorial sovereignty, hence beyond the scope of the Convention and any interpretation or application of it. But the Chinese then went on to lay out their own position on the merits while lamely arguing that its position paper “does not express any position on the substantive issues related to the subject-matter of the arbitration initiated by the Philippines”.

After due consideration, the tribunal decided that it would treat China’s communications including its position paper as constituting a plea and that it would conduct a hearing. Score another for the Filipinos.

The case for China

In its position paper of December 2014, China argued as follows:

  • China has indisputable sovereignty over the South China Sea Islands called in Chinese the Dongsha (Pratas), Xisha (Paracels), Zhongsha (Scarborough shoal and Maccelsfield Bank) and Nansha (Spratly) islands, along with their adjacent waters.
  • Chinese activities in the South China Sea date back over 2,000 years ago.
  • China was the first country to discover, name, explore and exploit the resources of the islands and the first to continuously exercise sovereign powers over them.
  • From the 1930s to 1940s, Japan illegally seized some parts of the islands during its war of aggression against China.
  • At the end of the Second World War, the Chinese Government resumed exercise of sovereignty over them. Military personnel and government officials were sent via naval vessels to hold resumption of authority ceremonies. Commemorative stone markers were erected, garrisons stationed, and geographical surveys conducted.
  • In 1947, China renamed the maritime features of the islands, and in 1948 it published an official map which displayed a dotted line in the South China Sea.
  • Since the founding of the People’s Republic of China in 1949, the Chinese Government has been consistently and actively maintaining its sovereignty over the South China Sea Islands. Both the 1958 government declaration on the territorial sea and the 1992 law on the territorial sea and the contiguous zone expressly provided that China’s territory included the Dongsha, Xisha, Zhongsha, and Nansha islands.
  • All those acts affirm China’s territorial sovereignty and relevant maritime rights and interests in the South China Sea.

The case for the Philippines

In his presentation to the tribunal’s July 2015 hearing on the question of jurisdiction and admissibility, the Philippines Secretary of Foreign Affairs Albert del Rosario emphasized that “in submitting this case, the Philippines is not asking the Tribunal to rule on the territorial sovereignty aspect of its disputes with China. We are here because we wish to clarify our maritime entitlements in the South China Sea, a question over which the Tribunal has jurisdiction.” Rosario summarized the Philippines’ case as follows:

  • China is not entitled to exercise what it refers to as “historic rights” over the waters, seabed and subsoil beyond the limits of its entitlements under the UN Convention on the Law of the Sea (UNCLOS);
  • The so-called “nine-dash line” has no basis whatsoever under international law insofar as it purports to define the limits of China’s claim to “historic rights”;
  • The various maritime features relied upon by China as a basis upon which to assert its claims in the South China Sea are not islands that generate entitlement to an exclusive economic zone or continental shelf. Rather, some are “rocks”, within the meaning of Article 121(3) of UNCLOS; others are low-tide elevations; and still others are permanently submerged. As a result, none are capable of generating entitlements beyond 12 miles, and some generate no entitlements at all. China’s recent massive reclamation activities cannot lawfully change the original nature and character of these features;
  • China has breached the Convention by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction;
  • China has irreversibly damaged the regional marine environment, in breach of the Convention, by its destruction of coral reefs in the South China Sea, including areas within the Philippines’ exclusive economic zone, by its destructive and hazardous fishing practices, and by its harvesting of endangered species.

The legal process

After several months of deliberation, in October 2015 the tribunal found unanimously that it did indeed have jurisdiction to consider the Philippines’ claim and whether such claims were admissible.  The tribunal rejected the argument set out in China’s position paper that the dispute was about sovereignty over the islands and the delimitation of a martime boundary between China and the Philippines, and therefore beyond the tribunal’s jurisdiction. It held that the Philippines submission reflected disputes between the two states concerning the interpretation and application of the Law of the Sea Convention, and that as both the Philippines and China were parties to the Law of the Sea Convention they were bound by its provisions on the settlement of disputes. The tribunal’s Award did not decide on any aspect of the merits of the dispute.

Following the issuance of the Award, the tribunal invited China to comment on the findings — which it did not — and in November 2015 the tribunal held a week of hearings on the merits of the Philippines submission. It is expected to announced its Award on that dimension of the case within the first few months of 2016.

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The feature illustration is of a Chinese military station on Johnson South Reef in the Spratly Islands photographed in February 2014. The image is from the Philippines Government via the AP and NBC.

 

The mission of the Vimy Report is to inject new information that will raise the quality of public discussion on security and defence issues, to do so with impact, and thereby to educate and influence the ultimate decision-makers: citizens and their elected representatives.

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