Philippines v. China

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The Republic of the Philippines v. The People’s Republic of China
Permanent Court of Arbitration - Cour permanente d'arbitrage.svg
Court Permanent Court of Arbitration
Full case name An Arbitration before an Arbitral Tribunal constituted under Annex VII to the 1982 United Nations Convention on Law of the Sea between the Republic of the Philippines and the People's Republic of China
Court membership
Judges sitting

Presiding Arbitrator:[1]
Ghana Thomas A. Mensah

Members:
France Jean-Pierre Cot
Germany Rüdiger Wolfrum
Netherlands Alfred H. Soons
Poland Stanislaw Pawlak
Map of the South East China
China's nine-dotted line claim over the South China Sea, 1947

Philippines v. China is a pending arbitration case unilaterally brought by the Philippines[2][3] concerning certain issues in the South China Sea [4] including the legality of China's "nine-dotted line" claim over the South China Sea under the United Nations Convention on the Law of the Sea (UNCLOS). On 19 February 2013, China officially refused to participate in the arbitration because, according to China, its 2006 declaration under article 298[5] covers the disputes brought by the Philippines and that this case concerns sovereignty, thus it deems the arbitral tribunal formed for the case has no jurisdiction over the issue.[6] On 7 December 2014, a position paper was published by China to elaborate its position.[4][7] On October 29, 2015, the Permanent Court of Arbitration (PCA) ruled that it has jurisdiction over the case,[8] taking up seven of the 15 submissions made by Manila.[9]

The PCA is expected to announce the outcome of the arbitration on 12 July 2016.

Background[edit]

The dispute has been affected by the fact that, after Japan renounced all claims to the Spratly Islands and other conquered islands and territories in the Treaty of San Francisco and Treaty of Peace with the Republic of China (Taiwan) signed on September 8, 1951, it did not indicate successor states[10] since China was not invited to the treaty talks held in San Francisco. In reaction to that, on 15 August, the Chinese government issued the Declaration on the Draft Peace Treaty with Japan by the US and the UK and on the San Francisco Conference by the then Foreign Minister Zhou Enlai, affirming China's sovereignty over the archipelagos in the South China Sea, including the Nansha Islands, and protesting about the absence of any provisions in the draft on who shall take over the South China Sea islands following Japan's renouncement of all rights, title and claim to them. It reiterated that "the Chinese government of the day had taken over those islands" and that the PRC's rightful sovereignty "shall remain intact".[11]

On 28 April 1952, the United States presided over the signing of the Treaty of Peace between Japan and the Republic of China. Article 2 of the document provided that "It is recognized that under Article 2 of the Treaty of Peace which Japan signed at the city of San Francisco on 8 September 1951 (hereinafter referred to as the San Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the Paracel Islands."[11]

Historically, the Philippine boundary has been defined by its 3 treaties, Treaty of Paris (1898), Treaty of Washington (1900) and "Convention regarding the boundary between the Philippine Archipelago and the State of North Borneo". The South China Sea archipelagos were not part of those treaties.[12] The Philippines bases its claim on its geographical proximity to the Spratly Islands.[13] In 1956, the dispute escalated after Filipino national Tomas Cloma and his followers settled on the islands and declared the territory as "Freedomland", now known as Kalayaan, in favor of occupation by the Philippines.[14] In 1956, Tomas Cloma apologized for his act and he returned the flag he stole from the Taiping Island. On Oct 2nd 1956, he wrote a letter and ensured he would not make further training ovyages or landings in the territorial waters of China (ROC).[15]

Starting from 1970s, when the Philippines was ruled by the dictator[16] Ferdinand Marcos, it invaded and occupied 8 islands and reefs in the South China Sea.[17][18]

The People's Republic of China claims it is entitled to the Paracel and Spratly Islands because they were seen as integral parts of the Ming dynasty.[13] China and Taiwan have these same territorial claims.[13] The Republic of China (Taiwan) took control of the largest island - Taiping Island - in the group since 1946.[14]

Vietnam states that the islands have belonged to it since the 17th century, using historical documents of ownership as evidence.[13] Hanoi began to occupy the westernmost islands during this period.[13]

In the early 1970s, Malaysia joined the dispute by claiming the islands nearest to it.[19]

Brunei also extended its exclusive economic zone, claiming Louisa Reef.[19]

Section 2 of Part XV of the Convention[edit]

China made declaration in accordance with the UN Convention on the Law of the Sea in 2006 not to accept any of the procedures provided for in section 2 of Part XV of the Convention. Many countries including the United Kingdom, Australia, Italy, France, Canada, and Spain made similar declarations to reject any of the procedures provided for in sections 2 of Part XV of the Convention with respect to the different categories of disputes.[20][21]

Australian international lawyers Rothwell and Stephens wrote in a published book that “[t]he Part XV dispute settlement mechanisms ... do not have jurisdiction over disputes arising under general international law”[4]

Australia has been mute regarding China's rejection to participate the arbitration since Australias has also rejected the same procedures provided for in sections 2 of Part XV of the Convention. Australia emphasized that possible rulings of submissions such as No.3, No.4, No.6, and No.7 can affect many nations regarding maritime entitlements for maritime features.[22][23]

Participants[edit]

Territorial claims in the South China Sea

The court case involves the Philippines and China.[24]

Philippine stance[edit]

The Philippines is contending that the "nine-dotted line" claim by China is invalid because it violates the UNCLOS agreements about exclusive economic zones and territorial seas.[25] It says that because most of the features in the South China Sea, such as most of the Spratly Islands, cannot sustain life, they cannot be given their own continental shelf as defined in the convention.[26]

Chinese stance[edit]

China refuses to participate in the arbitration, stating that several treaties with the Philippines stipulate that bilateral negotiations be used to resolve border disputes. It also accuses the Philippines of violating the voluntary Declaration on the Conduct of Parties in the South China Sea, made in 2002 between ASEAN and China, which also stipulated bilateral negotiations as the means of resolving border and other disputes.[27][28][29] China issued a position paper in December 2014 arguing the dispute was not subject to arbitration because it was ultimately a matter of sovereignty, not exploitation rights.[30] Its refusal will not prevent the Court from proceeding with the case.[31] According to Fu Kuen-chen of the Xiamen University, in dealing the South China Sea issue which involves many claimants, the unilatery format, or even binary format of the court case can never render resolution to the dispute. Fu insists that the best way to resolve the South China Sea dispute is through negotiation.[15][24]

Timeline[edit]

Critical dates of this arbitration are as follows:[32]

  • January 22, 2013 Philippines served China with notification and Statement of Claim
  • February 19, 2013 China rejected the Philippines’ Notification
  • July 11, 2013 First meeting of the Arbitral Tribunal at The Hague
  • July 31, 2013 Philippines commented on draft Rules of Procedure for the Tribunal
  • August 1, 2013 China indicated the PCA that “it does not accept the arbitration initiated by the Philippines”
  • August 27, 2013 Procedural Order No 1 issued via PCA Press Release on behalf of the Arbitral Tribunal[33]
  • March 30, 2014 Submission of the Philippines Memorial
  • May 14–15, 2014 Second meeting of the Arbitral Tribunal at The Hague
  • May 21, 2014 China comments on draft Procedural Order No 2 and observes that “it does not accept the arbitration initiated by the Philippines”.
  • May 29, 2014 Philippines comments on draft Procedural Order No 2
  • June 3, 2014 Procedural Order No 2 issued via PCA Press Release on behalf of the Arbitral Tribunal[34]
  • December 15, 2014 China had not filed a Counter-Memorial.[35]
  • December 17, 2014 Procedural Order No 3 issued via PCA Press Release on behalf of the Arbitral Tribunal[35]
  • March 16, 2015 The Philippines made a Supplemental Written Submission to the Arbitral Tribunal[36]
  • April 20–21, 2015 Third meeting of the Arbitral Tribunal at The Hague[36]
  • April 22, 2015 Procedural Order No 4 issued via PCA Press Release on behalf of the Arbitral Tribunal[36]
  • July 7–13, 2015 Hearing of the Arbitral Tribunal at The Hague[37][38]
  • October 29, 2015 PCA issued the Award on jurisdiction and admissibility[39]

Claimants of the South China Sea[edit]

Taiwanese stance[edit]

The arbitration has not invited Taiwan to join the arbitration, and no opinion of Taiwan has been sought.[40] The Philippines claimed in the court that Taiping Island is a rock. In response,[41] President Ma Ying-jeou of Taiwan rejected the Philippines' claim as "patently false".[42] Taiwan has invited the Philippines and five arbitrators from the PCA to visit Taiping Island; the Philippines rejected the invitation, and there was no response from the court of arbitration.[43]

Vietnamese stance[edit]

On December 11, 2014, Vietnam filed an intervention to the case which makes three statements: Vietnam supports the filing of this case by the Philippines; it rejects China's "nine-dashed line"; and it asks the Court to take note of Vietnam's claims on certain islands such as the Paracels.[44]

Others stances[edit]

In May 2009, Malaysia and Vietnam, as well as Vietnam alone, filed claims to the International Tribunal for the Law of the Sea with regard to the islands. This was in relation to extending their claimed continental shelves and Exclusive Economic Zones. The People's Republic of China rejected the claims since those violate the "nine-dotted line". The Philippines challenged them[vague], stating that the claims overlap with the North Borneo dispute. Indonesia made a comment on China's claim by saying that the features are rocks and cannot sustain life, effectively calling its[vague] claim invalid. The Philippines echoed Indonesia's claims, further stating that the islands belong to them through geographic proximity.[45][46]

Brunei sent its own claim through a preliminary submission.[47]

Hearings[edit]

On July 7, 2015, case hearings began with the Philippines asking the Permanent Court of Arbitration (PCA) at The Hague to invalidate China's claims. The hearings were also attended by observers from Indonesia, Japan, Malaysia, Thailand and Vietnam.[48] The case has been compared to Nicaragua v. United States due to similarities of the parties involved such as that a developing country is challenging a permanent member of the United Nations Security Council in an arbitral tribunal.[49]

On 29 October 2015, the court ruled that it had the power to hear the case. It agreed to take up seven of the 15 submissions made by Manila, in particular whether Scarborough Shoal and low-tide areas like Mischief Reef can be considered islands. It set aside seven more pointed claims mainly accusing Beijing of acting unlawfully to be considered at the next hearing on the case's merits. It also told Manila to narrow down the scope of its final request that the judges order that "China shall desist from further unlawful claims and activities."[9]

The arbitral tribunal scheduled the hearing on merits of the case from November 24 to 30, 2015.[50] A final decision on the case is expected on 7 July 2016.[51]

Award on Jurisdiction and Admissibility[edit]

On Oct 29 2015, the PCA published document Award on Jurisdiction and Admissibility[39] for the case. The PCA found that the Tribunal has jurisdiction to consider the following seven Philippines’ Submissions. The number is the Philippines’ Submissions number. PCA reserved consideration of its jurisdiction to rule on No. 1, 2, 5, 8, 9, 12, and 14.

  • No.3 Philippines’ position that Scarborough Shoal is a rock under Article 121(3).
  • No.4 Philippines’ position that Mischief Reef, Second Thomas Shoal, and Subi Reef are low tide elevations that do not generate entitlement to maritime zones.
  • No.6 Whether Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide elevations “that do not generate any maritime entitlements of their own".
  • No.7 Whether Johnson Reef, Cuarteron Reef, and Fiery Cross Reef do or do not generate an entitlement to an exclusive economic zone or continental shelf.
  • No.10 "premised on [the] fact that China has unlawfully prevented Philippine fishermen from carrying out traditional fishing activities within the territorial sea of Scarborough Shoal."
  • No.11 “China’s failure to protect and preserve the marine environment at these two shoals [Scarborough Shoal and Second Thomas Shoal].”
  • No.13 Philippines’ protest against China’s “purported law enforcement activities as violating the Convention on the International Regulations for the Prevention of Collisions at Sea and also violating UNCLOS”.

The Tribunal stated in the Award that there're disputes in all of the 15 submissions from the Philippines ,[39] but for submissions such as No.3, No.4, No.6 and No.7, no known claims from the Philippines prior to the initiation of arbitration, and China was not aware or oppose such claims prior to the initiation of arbitration. The Tribunal did not follow the rules and practice of international law in determining the existence of disputes. Chinese Society of International Law states that the PCA was trying to hide its incapability to prove that maritime entitlements of the nine features constitute the disputes.[4]

For Submission No.8 to No.14, the Tribunal held the view that lawfulness of China's activities in the South China Sea is not related to sovereignty. It's suggested that it's impossible to judge legality if sovereignty is ignored since maritime zones are results of exercise of sovereignty.[4]

Analysis of academics[edit]

Role of PCA[edit]

  • Chinese Society of International Law, explains in a published report that the Award for the case is completely erroneous. It's against the principle of international law.[4]
  • Helmut Türk, president of International Seabed Authority and former Judge of ITLOS said that arbitral tribunals have few people than ITLOS. It lacks representative and authoritative. Different minor opinions would lead to fragmentation of international judicial decision and damage the principle of stare decisis, which is against the purpose and integrity of UNCLOS and the trend of the international law.[52]
  • Tom Zwart, Professor of Law, Utrecht University, and Director of the Cross-Cultural Human Rights Centre, and Ruikun Sun, Fellow at the Netherlands School of Human Rights Research state that the case has so many actors and can affect many interests, that the binary format of a court case between 2 parties can never do justice to all. It also breaks the culture of harmony in Asia. As a result, the dispute should not be handled by a judicial tribunal.[24]
  • Wu Shicun, president and senior research fellow of the National Institute for South China Sea Studies, says that China’s claims are based on historic evidence. Philippines' occupation of South China Sea islands is illegal. The arbitration is against international law, and the only way for a peaceful resolution is to respect the commitment to negotiations.[53]
  • Stefan Talmon, director of the Institute of Public International Law at the University of Bonn, states that the Permanent Court of Arbitration does not have jurisdiction over territorial issues which are governed by customary international law, not UNCLOS.[54]
  • Legal scholar Anthony Carty of University of Hong Kong states in a published book that the case has been criticized and the Arbitration Tribinal now faces a claim which is not justiciable.[6]
  • Antonios Tzanakopoulos, associate professor of public international law at the University of Oxford, states in his published paper that the dispute of the case is obviously about sovereignty and maritime delimitation. Sovereignty and maritime delimitation are beyond the stipulation of the UNCLOS.[55][56]
  • Abdul G. Koroma, former judge of the International Court of Justice, states that a tribunal is not allowed to pass judgement on a territorial and boundary dispute since a tribunal doesn't have competence nor power to judge such matter. [57]

China's nine-dashed line[edit]

  • Wu Shicun, president and senior research fellow of the National Institute for South China Sea Studies, stated that the China's nine-dash line came almost half a century ahead of the UNCLOS, there is no reason to ask the nine-dash line to conform to a later convention.The non-retroactivity is a basic principle of international law, the existing facts of the past cannot be overwritten by today's law.[58]
  • Ted L. McDorman, professor at the Faculty of Law, University of Victoria, states in a published book that historic waters are not regulated under UNCLOS. The ICJ in the 1982 Tunisia/Libya case clearly stated that historic rights of waters are governed by customary international law, not UNCLOS.[59]
  • Kuen-Chen Fu, dean of South China Sea Institute, Xiamen University, chief editor of China Oceans Law Review, states that in contract, a gesture like the nine-dashed line does not constitute an offer. China demarcated the u-shaped line with the help of the United States legal office in 1947. Countries including the Philippines and the United States were acknowledged the existence of the nine-dashed line. The US requested permission to visit the Spratly Islands in 1960.[15]
  • John Norton Moore, director of the Center for National Security Law and the Center for Oceans Law and Policy, said that the China's nine-dash line claim is illegal and has no basis in the UNCLOS.[60] He also asserted that the nine-dashed line is not in China's interest, saying: "“If others were to do the same thing around the world, that China has done in the nine-dash line, it would be extremely harmful to the interests of China around the world.”[61]

Claims by the Philippines[edit]

  • Zou Keyuan, Harris Professor of International Law at the Lancashire Law School of the University of Central Lancashire, United Kingdom, states in his published book that possible EEZ of the Spratly Archipelago is ignored in the Philippines' unilateral EEZ claim. Sovereignty over land territory always controls maritime jurisdiction. The Philippine argument of EEZ of the case may be an effort to muddy the juridical water and to try gain some international support for its weak sovereignty claim.[62]
  • Kuan-Hsiung Wang, a professor at the Graduate Institute of Political Science, National Taiwan Normal University, has characteriuzed the claims by the Philippines as "Dubious", opining that the Philippines is undermining efforts to resolve disputes and promote stability.[63]\

Enforcability of the verdict[edit]

  • Abdul G. Koroma, former judge of the International Court of Justice, states that it's clear that it's right for China to reject arbitration and any verdict of the PCA.[64]
  • Richard Javad Heydarian, an Assistant Professor in political science at De La Salle University who is a past policy advisor at the Philippine House of Representatives (2009-2015) has observed that the ICA Tribunal has no mechanism to enforce any unfavorable verdict against China.[65]

International reactions[edit]

  • Nico Schrijver, academic director of the Leiden University's Grotius Center for International Legal Studies, stated that disputes should be solved by the claimant countries, and big powers such as the United States must be prevented from getting involved. [64]
  • Researcher Frauke Renz[66] speculated in the National Interest's blog that Russia, Belarus, Brunei, Cambodia and Laos are compelled to take China’s side because of their political or economic interests due to Chinese hard power.[67]

International reactions[edit]

Countries and multinational bodies have either expressed support or opposition to the Philippines move to take the South China Sea dispute to the Permanent Court of Arbitration. These entities however may not necessarily support either sides when it comes to the ownership of the disputed area affected by the case.

National governments[edit]

Support for the arbitration case
Support for the Philippines' right to seek arbitration / Calling on China to respect the arbitration decision
Opposition against the arbitration / Support for bilateral talks among the parties involved
11 countries (Bahrain, Djibouti, Iraq, Jordan, Kuwait, Morocco, Oman, Somalia, Syria, Tunisia, United Arab Emirates) of Arab League and one country (Uzbekistan) of the Shanghai Cooperation Organisation are currently not listed here.
Support for bilateral talks but also following EU's official views on the arbitration

In May 2016, Chinese Foreign Ministry spokeswoman Hua Chunying said that there're more than 40 countries that had expressed their support on China's position.[125] In June 2016, it has been reported nearly 60 countries support China's position. China stressed that 7 or 8 countries cannot represent international society.[111][126]

One April 13, 2016, a joint press release by Chinese Foreign Minister Wang Yi and Fijian Minister for Foreign Affairs Inoke Kubuabola was published. The press release says Fiji supported China’s proposition, both countries agree that for sovereignty and maritime rights, parties should be committed to peaceful settlement and optional exceptions of the Convention should be respected.[127] On the next day, Fijian government issued an statement saying the joint press release incorrectly depicted Fijian policy and the Fijian government does not support China's proposition[128]

In August 2015, a junior Minister of State of India V K Singh told that territorial disputes should be resolved through peaceful means like that was done by India and Bangladesh using the mechanisms provided by the UNCLOS, and parties should abide by the Declaration of the Conduct of Parties in the South China Sea.[129] In October 2015, the Foreign Minister of India Sushma Swaraj stated in a joint statement that India supports a peaceful settlement of the dispute. Peaceful means should be used according to the principles of international law, including the UNCLOS. In April 2016, the Foreign Minister Sushma Swaraj stated in a communique that Russia, India and China agreed to maintain legal order of seas based on international law, including the UNCLOS, and all related disputes should be addressed through negotiations and agreements between the parties concerned.[100] A clear signal was sent that both Russia and India support China's position regarding how disputes should be resolved.[130]

South Korea, has maintained its neutrality being silent on the dispute. During the 2015 East Asia Summit, President Park Geun-hye stated that concerned parties should observe the Declaration on the Conduct of Parties in the South China Sea and that disputes should be resolved according to international law. "Korea has consistently stressed that the dispute must be peacefully resolved according to international agreements and code of conduct" and "China must guarantee the right of free navigation and flight.[131][132]

Malaysia who has territorial claims in the South China Sea, as well as Singapore and Thailand sent observers to the proceedings.[133]

Australia has been mute regarding China's rejection to participate the arbitration since Australia has also rejected the the same procedures provided for in sections 2 of Part XV of the Convention. Australia emphasized that possible rulings of submissions such as No.3, No.4, No.6, and No.7 can affect many nations regarding maritime entitlements for maritime features.[22][23]

Multinational bodies[edit]

African Union[edit]

The Deputy Chairperson of the African Union supports China's position.[95]

Arab League[edit]

Arab League Secretary General Nabil al-Araby said that Arab countries support China's position on ‘safeguarding’ its sovereignty and territorial integrity. The Arab League however stressed that the rights of sovereign nations as well as the U.N. Convention on the Law of the Sea (UNCLOS) signatories to choose how to solve their disputes should be respected as well.[134]

European Union[edit]

European Union encourages all parties to seek peaceful solutions, through dialogue and cooperation, in accordance with international law – in particular with the UN Convention on the Law of the Sea.[135] A foreign affairs of the EU issued a statement saying "Whilst not taking a position on claims, the EU is committed to a maritime order based upon the principles of international law, in particular as reflected in the United Nations Convention on the law of the Sea (UNCLOS),".[136] The EU later stressed that China should respect the ruling from the Hague.[137]

Group of Seven[edit]

The Group of 7 (Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States as well as a representation from the European Union) made a statement that the bloc should issue a "clear signal" to China's overlapping claims.[138] European Council President Donald Tusk said on the sidelines of a summit in Ise-Shima that the bloc should take a "clear and tough stance" on China's contested maritime claims.[139]

NATO[edit]

Czech Army General Petr Pavel said that NATO advocates a “rules-based international system” and peaceful means for resolving discord. He added that "China is a signatory [to UNCLOS], and China should respect the norms,” General Pavel said. “If there’s any problem with the norms, they should raise it through the proper and established procedures, and not simply disrespect the norm and take unilateral action.”[140]

Shanghai Cooperation Organisation[edit]

In a statement of the Shanghai Cooperation Organisation Secretary-General Rashid Olimov on South China Sea issue, all SCO countries agreed and supported China's efforts made to safeguard peace and stability in the South China Sea. Directly concerned states should resolve disputes through negotiation and consultation in accordance with all bilateral treaties and the Declaration on the Conduct of Parties in the South China Sea (DOC), the statement said. It urged to respect the right of every sovereign state to decide by itself the dispute resolution methods, and strongly opposed outsiders' intervention into the South China Sea issue, as well as the attempt to internationalize the dispute.[141]

Foreign based organizations[edit]

Confederation of Toronto Chinese Canadian Organizations[edit]

Members from the Confederation of Toronto Chinese Canadian Organizations consisting of more than 80 Chinese Canadian organizations voiced their support for China's stance on the sovereignty issue of the South China Sea. The delegates bashed the deal reached between the United States and the Philippines which, in their view, troubled the region with instability.[142]

Nepal Workers and Peasants Party[edit]

Narayanman Bijukchhe, the party chairman, said that the South China Sea has been unnecessarily dragged in dispute by Western countries, primarily the U.S., to maintain its hegemonic exploitation over Asian countries. Bijukchhe called on countries in Asia to be on alert for conspiracies being hatched to arouse fight among the Asian countries. [143]

See also[edit]

References[edit]

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