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Case Brief on the South China Sea Arbitration between the Republic of the Philippines and the People’s Republic of China by the Permanent Court of Arbitration

• Case Brief on the South…

by Abeer Mustafa ,  Research Associate, RSIL  

SOUTH CHINA SEA ARBITRATION

(PCA Case Number 2013–19)

Between The Republic of the Philippines and The People’s Republic of China

Before An Arbitral Tribunal Constituted Under Annex VII to the United Nations Convention on the Law of the Sea 1982

Registry: Permanent Court of Arbitration                     Date of Award: 12 July 2016

The South China Sea has, especially in contemporary times, emerged as a region of great interest to global players, in terms of strategic and economic interests of the competing States. As Foreign Policy puts it, “There’s no tenser set of waters in the world than the South China Sea. For the last few years, China and its neighbors have been bluffing, threatening, cajoling, and suing for control of its resources.” [2]

To best understand the current situation in the South China Sea from a legal point of view, it is imperative to refer back to the judgment passed by the Arbitral Tribunal of the Permanent Court of Arbitration last year, in response to the claims brought by Philippines against China, primarily regarding maritime rights, entitlements and zones in the South China Sea, as well as for the protection of the marine life and the environment of the region, under the United Nations Convention on the Law of the Sea, 1982.

China has always argued for historic rights, as demarcated by the ‘Nine Dash Line’ on its official maps of the region in question; other stakeholders, however, dispute this claim, as shown in the arbitral proceedings. As is noted:

… While it was the Philippines which brought the case, it wasn’t the only interested party in the Asean. Three other members have claims to parts of the South China Sea or the Spratly Islands or the Paracels that conflict with China’s expansive nine-dash theory: Brunei, Malaysia, and Vietnam. Indonesia, Asean’s largest economy, has continuing run-ins with Chinese fishing vessels and occasionally with the Chinese Coast Guard in its exclusive economic zone. [3]

Now, as the Association of South East Nations (ASEAN) heads towards working on the enforcement of this arbitration award from last year (2016), and attempting to employ a code of conduct for the South China Sea, it becomes even more important to look at the arbitral ruling from an objective vantage point.

The South China Sea Arbitration was conducted between the Republic of the Philippines and the People’s Republic of China by the Permanent Court of Arbitration (PCA), under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The arbitration is related to disputes between the Parties regarding the legal basis of maritime rights and entitlements, the status of certain geographic features, and the lawfulness of certain actions taken by China in the South China Sea; in particular, the following four issues, as raised by Philippines:

• To resolve a dispute between the parties regarding the source of maritime rights and entitlements in the South China Sea;
• To resolve a dispute between the parties concerning the entitlements to maritime zones that would be generated under the Convention by Scarborough Shoal and certain maritime features in the Spratly Islands that are claimed by both the parties;
• To resolve a series of disputes concerning the lawfulness of China’s actions in the South China Sea, vis-à-vis interfering with Philippine’s rights, failing to protect and preserve the marine environment, and inflicting harm on the marine environment (through land reclamation and construction of artificial islands);
• To find that China has aggravated and extended the disputes between the Parties by restricting access to a detachment of Philippines Marines stationed at Second Thomas Shoal.

While China and Philippines are both parties to the UNCLOS, China specifically made a declaration in 2006 to exclude maritime boundary delimitation from its acceptance of compulsory dispute settlement. In addition, China has shown disagreement with Philippines’ decision to take the matter to arbitration and has decided neither to agree with the decision of the Tribunal nor to participate in the proceedings.

The Tribunal, on its end, has taken cognizance of these factors and has purported to not deal with delimiting maritime boundaries. Furthermore, the Tribunal did not bar the proceedings, on the basis of Article 9 of Annex VII of UNCLOS [4] . In addition, the Tribunal also noted that despite China’s absence from the proceedings, since it is a party to the UNCLOS, the decision of the Tribunal would, in fact, be binding upon it, pursuant to Article 296 (1) [5] and Article 11 of Annex VII [6] .

China’s Foreign Ministry, further, stated its position with regard to the proceedings by publishing a Position Paper in 2014 [7] . It claimed that the Tribunal lacks jurisdiction over the matter because:

• The essence of the subject-matter of the arbitration is the territorial sovereignty over the relevant maritime features in the South China Sea;
• China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations;
• Philippines’ disputes would constitute an integral part of maritime delimitation between the two countries.

The Tribunal considered China’s Position Paper as a plea on jurisdiction, and conducted a separate hearing on the issue of jurisdiction and admissibility. Additionally, the Tribunal also declared that it would honour China’s declaration of 2006 and the UNCLOS and would neither delve into issues of maritime boundary delimitation or questions of sovereignty. The Philippines also stated that it, “does not seek in this arbitration a determination of which Party enjoys sovereignty over the islands claimed by both of them. Nor does it request a delimitation of any maritime boundaries.” [8]

Pursuant to this, the Tribunal issued its Award on Jurisdiction [9] in October 2015, in which it concluded that it did indeed have jurisdiction in the case, as per Philippines’ Final Submissions [10] , and that China’s lack of participation would not prove to be a bar to its proceedings. It, further, concluded that the treaties China was relying on were either political in nature and not legally binding [11] , or that they did were legally binding and yet did not bar either Party from alternative means of dispute resolution [12] . In accordance with Article 283 of the UNCLOS [13] , the Tribunal found that this requirement was met in the diplomatic communications between the Parties and that Philippines’ initiation of proceedings under the UNCLOS did not constitute an abuse of of process as claimed by China.

The Tribunal, proceeding with the first two submissions made by the Philippines, considered the validity of China’s claim to historic rights in the maritime region of the South China Sea and the ‘Nine-Dash Line’. Through a lengthy analysis of the text and context of the Convention, in line with the principles set out in the Vienna Convention on the Law of Treaties, the Tribunal established that the Convention supersedes any treaties in force before its coming into force. It questioned China’s claim to historical rights in the region, and established that China’s state practice does not show that China had been enjoying any historical rights in the South China Sea; rather, it was enjoying the freedom of the high seas and since it did not create bar to other states’ usage of the same, it could not be understood as being a historical right. Furthermore, since China’s publishing of the same in its Notes Verbales in 2009, many states have objected to its claim as well. “The Tribunal concludes that the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.” [14] However, the Tribunal also concluded that its jurisdiction was limited to the claims of historic rights on the maritime region and not to the land masses in the South China Sea, i.e. if it can claim historic rights on any of the islands, then it may also be able to claim maritime zones (as per the Convention) on the basis of these islands.

Next, the Tribunal looked at Philippines’ submissions 3 to 7, concerning the nature of the features in the South China Sea. It differentiates between low-tide elevations [15] , high-tide features [16] and rocks [17] . In its Award on Jurisdiction, the Tribunal clarified that:

This is not a dispute concerning sovereignty over the features, notwithstanding any possible question concerning whether low-tide elevations may be subjected to a claim of territorial sovereignty. Nor is this a dispute concerning sea boundary delimitation: the status of a feature as a “low-tide elevation”, “island”, or a “rock” relates to the entitlement to maritime zones generated by that feature, not to the delimitation of such entitlements in the event that they overlap. [18]

The Philippines put forward three categories for classifying low-tide elevations: where a low-tide elevation is located within 12 miles of a high-tide feature [19] , where the low-tide elevation is beyond 12 miles but within the state’s exclusive economic zone or continental shelf [20] , and where the low-tide elevation is located beyond the areas of natural jurisdiction [21] .

For the purpose of identifying the nature of the features in the South China Sea, the Tribunal relied upon satellite imagery that had been conducted on the area and direct surveys that had been carried out, by navies or otherwise, in the area, and relied upon maps that were sufficiently detailed. They chose a certain tidal height to maintain uniformity across the features, and decided to rely, in cases where there had been significant man-made changes, alterations or construction on the features, upon maps/imagery/surveys that depicted the features as they had been in their original form. [22]

Again the Tribunal relied upon statements previously made by China to obtain their stance on the nature of the features, since China had neither submitted any document to the Tribunal nor had it discussed these in its Position Paper.

The Tribunal concluded that Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson Reef, McKennan Reef and Gaven Reef (North) were all found to be high-tide features. The Tribunal further noted that for the purposes of Article 121(3), the high-tide features at Scarborough Shoal and the reefs were rocks that cannot sustain human human habitation or economic life of their own and so have no exclusive economic zone or continental shelf. The Tribunal found the same to be true of the Spratly Islands and so concluded that China, therefore, has no entitlement to any maritime zone in the area of Mischief Reef or Second Thomas Shoal; they do, however, form part of the exclusive economic zone and continental shelf of the Philippines as they lie within 200 nautical miles of the Philippines’ coast and there are no overlapping entitlements in the area with respect to China.

On the contrary, Hughes Reef, Gaven Reef (South), Subi Reef, Mischief Reef and Second Thomas Shoal were all found to be low-tide elevations, of which Hughes Reef lay within 12 miles of McKennan Reef and Sin Cowe Island, Gaven Reef (South) lay within 12 miles of Gaven Reef (North) and Namyit Island, and Subi Reef lay within 12 miles of the high-tide feature of Sandy Cay on the reefs to the west of Thitu.

In the issue of Chinese interference with the living and non-living resources (primarily concerned with fishing practices in the South China Sea and oil and gas exploration and exploitation) of the Philippines, the Tribunal considered diplomatic statements from China to the Philippines and regulations related to the matter that China had passed domestically. The Philippines put forward four contentions related to living resources: China’s prevention of fishing by Philippine vessels at Mischief Reef since 1995, and at Second Thomas Shoal since 1995, China’s revision of the Hainan Regulation [23] and China’s moratorium on fishing in the South China Sea in 2012 [24] . The Tribunal finds that China had breached Articles 77 [25] and 56 [26] of the Convention through the operation of its marine surveillance vessels (which interfered with Philippines’ oil and gas exploration) and through its moratorium on fishing which interfered with the exclusive economic zone of the Philippines, respectively.

The Tribunal also found China in breach of Article 58 (3) [27] of the Convention, due to its failure to prevent fishing by Chinese flagged ships in the exclusive economic zone of the Philippines, failing to respect the sovereign rights of the Philippines over its fisheries in its exclusive economic zone.

Submission 10 of the Philippines related to China’s interference with Philippines’ fishing vessels and practices in the Scarborough Shoal. While both the states had conflicting views on the situation (China believed that it was Philippines who was causing the interference) and both claimed historic rights (Philippines distinguished this by clarifying that it only referred to historic fishing rights) to the region, the Tribunal opined that China was, in fact, in contravention of the Convention by interfering with the traditional fishing practice of the Philippines in its exclusive economic zone through the deployment of its official ships in the region. The Tribunal also noted that this decision does not depend on the question of sovereignty, and that the Tribunal once again refrained from commenting on the matter.

Philippines’ successive contention related to China’s activities on the reefs in the South China Sea, with regards the practices it had adopted for the purpose of large-scale construction and reclamation at seven locations in the Spratly Islands [28] , and its practices with regards to fishing [29] in the South China Sea. Philippines claimed that China had been harming and causing damage to the marine environment of the South China Sea through these practices and despite objections from the surrounding states, China had not ceased its actions. It was also noted that while some of the fishing ships were not state-appointed ships and were being manned by non-state actors, the Chinese government had neither condemned their actions nor made any efforts to stop them from proceeding. The Tribunal, assisted by three independent experts on coral reef biology, expert briefs and satellite imagery, found that China was in breach of the Convention for failing to stop the fishing vessels from engaging in harmful harvesting practices [30] and also for its island-building activities [31] . The Tribunal further opined that China’s construction on Mischief Reef, without authorization from Philippines was in violation of Philippines’ sovereign rights in its exclusive economic zone and continental shelf and a breach of the Convention [32] .

The next consideration before the Tribunal was the demeanour of China’s law enforcement vessels at Scarborough Shoal [33] and the lawfulness of these actions. The Philippines also raised the issue under the relevant provisions of the Convention on the International Regulations for Preventing of Collisions at Sea, 1972 (COLREGS). The Tribunal found that China, through the actions of its law enforcement vessels, endangered Philippine vessels and personnel and created a serious risk of collision and found China in breach of Article 94 of the Convention [34] .

The Tribunal, in response to Submission 14 of the Philippines, opined that China had, in the course of the proceedings of this arbitration, aggravated and extended its disputes with Philippines, through its actions of dredging, artificial island-building and construction activities [35] .

Lastly, the Tribunal did not find it necessary to make any further declaration, owing to the fact that both the parties are already parties to the Convention and are already obliged to comply with it.

Author:  Research Society of International Law

Related posts.

Philippine Claims in the South China Sea: A Legal Analysis

The Philippine islands are at the center of current maritime disputes in the South China Sea (SCS). The Philippines has had maritime disputes with a number of countries, including the United States. Now, legal and policy attention is focused on sovereignty disputes between the Philippines and principally China in four areas: Scarborough Shoal; Second Thomas Shoal (the site of a beached former U.S. Navy LST); Reed Bank (or Reed Tablemount); and a variety of features in the Spratly island chain, in which the contestants also include Vietnam and the Republic of China (Taiwan). China’s assertion of its nine-dashed-line claim to the South China Sea in its 2009 filing with the UN Commission on the Limits of the Continental Shelf (CLCS) and its most recent actions to exclude Philippine fishermen from the waters around Scarborough Shoal emboldened the Philippine government to seek assistance from an international arbitration tribunal. It remains unclear whether the Chinese government will ever make an appearance before the Tribunal, or what the precedential effect of an adverse “judgment” would be, but this arbitration is an important development in the overall question of how these disputes will be decided and what the applicable rule set will be. Indeed, in the face of increasing tensions between Vietnam and China concerning China’s oil and gas activities in the vicinity of the Paracel Islands, numerous press reports say that Vietnam is considering joining the Philippine arbitration or initiating action on its own.

This paper will explore the legal and policy basis for the Philippines’ claims to features in the South China Sea with a focus on the areas listed above. Since the Philippines are geographically near most of the features in dispute, the task of examining the claims is complex: the claims are inextricably linked to the evolution of the Philippines as an archipelagic state pursuant to the 1982 UN Convention on the Law of the Sea (UNCLOS). The paper will also examine the entitlements of the Philippines to submerged features as part of its continental shelf.

This analysis will first examine the historical boundaries of the Philippine archipelago and the recent actions by the Philippines to conform its archipelagic claims to UNCLOS. It then will address the legal and historic basis of the Philippines’ claims to features in the South China Sea. Some discussion of the historic basis for the Philippines’ claims and the way in which its current boundaries were established is essential, since some of the claims to features outside of the Archipelago are predicated upon the fact that particular features lie upon the Philippine continental shelf. The analysis will conclude with a discussion of the pending arbitration and a possible template for joint development.

The focus is on two basic claims by the Philippine government: first, the claim to the features known as Scarborough Shoal; and second, the claim to the Kalayaan island group (KIG). The KIG encompasses a variety of notable features in the Spratly island chain, including (English variants) Reed Bank, Mischief Reef, Itu Aba, Second Thomas Shoal, and Fiery Cross Reef. These two claims differ in terms of both history and legal predicate. The KIG claim is loosely based on principles of discovery and effective occupation. Part of the KIG claim includes Mischief Reef, which is now occupied by forces from China. The bulk of the KIG claim is due west of Palawan Province in the Southern Philippines; it has some rich fishing areas as well as hydrocarbon resources near Reed Bank, which is in the eastern portion of the KIG claim. By contrast, the claim to Scarborough Shoal relies upon different historic facts. The Shoal is mostly submerged at high tide; some argue that it is thus part of the Philippine continental shelf and should be classified as a high-tide elevation and entitled to a 12-nm territorial sea. Regardless, the legal bases for these sovereignty claims will be examined. That analysis will be tempered, of course, by international law as it relates to the ability of states to appropriate wholly submerged, or low-tide elevations, as well the legal entitlements of states to rocks which appear at high tide. In doing so, it will take into consideration the countervailing arguments by Vietnam and China to sovereignty, in order to offer an objective assessment of which claims are superior.

Distribution unlimited. Specific authority contracting number: E13PC00009.

• Document Number: IOP-2014-U-008435
• Publication Date: 8/1/2014

A case study of near-inertial oscillation in the South China Sea using mooring observations and satellite altimeter data

• Special Section: Original Article
• Regional Environmental Oceanography in the South China Sea and Its Adjacent Areas (REO-SCS): II
• Published: 04 November 2011
• Volume 67 , pages 677–687, ( 2011 )

Cite this article

• Lu Sun 1 , 2 ,
• Quanan Zheng 3 , 4 ,
• Dongxiao Wang 1 ,
• Jianyu Hu 4 ,
• Chang-Kuo Tai 5 &
• Zhenyu Sun 4  

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A near-inertial oscillation (NIO) burst event in the west South China Sea (SCS) was observed by an upward-looking mooring Acoustic Doppler Current Profiler (ADCP) in summer 2004. The mooring station was located at 13.99°N, 110.52°E. The spectral analysis reveals that typhoon Chanchu is a major mechanism in triggering the NIO burst event. Before typhoon Chanchu passed over, the NIO signals were quite weak. The NIO band becomes the most energetic constituent of the circulation during the typhoon-wake period. The average peak power density (PD) reaches (5.3 ± 2.6) × 10 2  cm 2  s −2  (cycles per hour, cph) −1 with a maximum value of 9.0 × 10 2 cm 2  s −2  cph −1 , i.e., 3.1 times higher than that of diurnal tide (DT), (1.7 ± 0.5) × 10 2  cm 2  s −2  cph −1 . At the upper (80 m) and sub-upper (208 m) layers, the central frequency of the NIO band is 0.022 cph with a blueshift of about 9% above the inertial frequency f (0.02015 cph). At the lower layer (400 m), the central frequency of the NIO band is 0.021 cph with a blueshift of about 4% above the inertial frequency. The blueshifts are explained partially by the Doppler shift induced by the vorticity of mesoscale eddies. During the after-typhoon period, a resonance-like process between NIO and DT is observed in the upper layer. As the NIO frequency approaches the DT subharmonic frequency (0.5K 1 ), the PD of the NIO band rises sharply accompanied by a sharp drop of the PD of the DT band. The PD ratio of the two bands increases from 4.5 during the typhoon-wake period to 8 during the after-typhoon period, indicating the effect of the parametric subharmonic instability (PSI) mechanism.

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Acknowledgments

This work is supported by the National Natural Science Foundation of China through project 40976013 (for Sun and Hu) and 40830851 (for Wang), the National Basic Research Program of China (973 Program) project 2011CB403504 (for Wang), and the United States National Oceanic and Atmospheric Administration National Environmental Satellite, Data, and Information Service Ocean Remote Sensing Program 3000-11-03241 (for Zheng and Tai). The MADT data are downloaded from the website of the Archiving, Validation and Interpretation of Satellite Oceanographic data (Aviso). Any opinions, findings, and conclusions or recommendations expressed in this paper are those of the authors and do not necessarily reflect the views of National Oceanic and Atmospheric Administration. The authors appreciate helpful comments by three anonymous reviewers.

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State Key Laboratory of Tropical Oceanography, South China Sea Institute of Oceanography, Chinese Academy of Sciences, Guangzhou, 510301, Guangdong, China

Lu Sun & Dongxiao Wang

South China Sea Environment Monitoring Center, South China Sea Branch of State Oceanic Administration, Guangzhou, 510301, Guangdong, China

Department of Atmospheric and Oceanic Science, University of Maryland, College Park, MD, 20742, USA

Quanan Zheng

State Key Laboratory of Marine Environmental Science, Xiamen University, Xiamen, 361005, Fujian, China

Quanan Zheng, Jianyu Hu & Zhenyu Sun

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Sun, L., Zheng, Q., Wang, D. et al. A case study of near-inertial oscillation in the South China Sea using mooring observations and satellite altimeter data. J Oceanogr 67 , 677–687 (2011). https://doi.org/10.1007/s10872-011-0081-9

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Received : 24 August 2010

Revised : 07 September 2011

Accepted : 15 September 2011

Published : 04 November 2011

Issue Date : December 2011

DOI : https://doi.org/10.1007/s10872-011-0081-9

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