Free Consultant
The Permanent Court of Arbitration’s role on the dispute on the South China Sea between China and the Philippines.
On 22 January 2013, the Republic of the Philippines initiated arbitral proceedings against the People’s Republic of China under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS). The arbitration concerned the role of historic rights and the source of maritime entitlements in the South China Sea, the status of certain maritime features in the South China Sea, and the lawfulness of certain actions by China in the South China Sea that the Philippines alleged to be in violation of the Convention.
The United Nations Convention on the Law of the Sea was adopted as a “constitution for the oceans,” in order to “settle all issues relating to the law of the sea,” and has been ratified by 168 parties including the Philippines and China.
Case Brief
The dispute concerned about the maritime rights in the South China Sea between the Philippines and China.[CC1] Since South China Sea is a semi-enclosed sea closed to many territories, it becomes one of the most important seas in economics and maritime resources. The Philippines initiated arbitration proceedings against China, pursuant to Articles 286 and 287 of the Convention, to the Permanent Court of Arbitration and stated that it seeks an Award that
- Declares that the Parties’ respective rights and obligations in regard to the waters, seabed, islands, and low-tide elevations of the South China Sea are governed by UNCLOS, and that China’s claims based on its nine-dash line which is claimed by historic rights are inconsistent with the Convention and therefore invalid;
- Determines whether, under Article 121 of UNCLOS, certain maritime features claimed by both China and the Philippines are islands, low tide elevations or reefs, and whether they are capable of generating entitlement to maritime zones greater than 12 Nautical miles including entitlements to maritime zones that would be generated under the Convention by Scarborough Shoal;
- Resolve a series of disputes concerning the lawfulness of China’s actions in the South China Sea interfering with Philippine’s rights, failing to protect and preserve the marine environment, and inflicting harm on the marine environment and;
- 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 and construction of artificial islands around the Spratly Islands.
However, the Philippines does not seek in this arbitration a determination of which Party enjoys sovereignty[1] over the islands claimed by both, nor does it request a delimitation of any maritime boundaries.
China has consistently rejected the Philippines’ recourse to arbitration and adhered to a position of neither accepting nor participating in these proceedings stating that is their rights under the convention to absence the arbitration. The possibility of a party refraining from participating in dispute resolution proceedings is expressly addressed by the Convention, which provides in Article 9 of its Annex VII that the “absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” The Tribunal has observed that China is still a Party to the arbitration, pursuant to the terms of Article 296(1) of the Convention and Article 11 of Annex VII of the convention.
Despite its decision not to appear formally at any point in these proceedings, China published “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” which was an unofficial paper to not accept the court jurisdiction, by China’s Foreign Ministry. In its Position Paper, China argued that the Tribunal lacks jurisdiction because the essence of the subject-matter of the arbitration is the territorial sovereignty over the relevant maritime features in the South China Sea. In addition, 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, and the disputes submitted by the Philippines would constitute an integral part of maritime delimitation between the two states.
Pursuant to Article 288(4) of the Convention, “in the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.” [CC2] that give the tribunal to set their jurisdiction. As set out above, where a Party does not appear before the Tribunal, Article 9 of Annex VII to the Convention requires that “the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.” The Tribunal awarded that the absence of China did not reduce the court’s jurisdiction and the Declaration on the Conduct of Parties in the South China Sea do not preclude under Articles 281 or 282 of the convention that “If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure”
Still China has not accepted the decisions in the Tribunal’s Award on Jurisdiction and has stated that the Award is null and void, and has no binding effect on China. For the avoidance of doubt, the Tribunal hereby reaffirms in full, and incorporates by reference, the conclusions and reasoning set out in its Award on Jurisdiction.
The Tribunal’s awards
The Tribunal, proceeding with the first 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 an analysis of the Convention, in line with the principles set out in the Vienna Convention on the Law of Treaties. The Tribunal pointed that the historic rights which China has claimed and practiced does not show the historic rights of the South China Sea but the area is more likely the high sea, and it did not create a bar to other states’ usage thus it can not call a historic rights. [CC3] Moreover, since China set out the nine-dash line in 2009, many states has objected to their claimed as well. The Tribunal has awarded that the state’s jurisdiction was limited to the claims of historic rights on the maritime region and not to the land masses in the South China Sea which if the state can claim historic rights of any islands, they would be able to claim maritime zone on those islands as well.
Secondly, the Tribunal considered the status of the maritime feature at Spratly Islands. This is not a dispute concerning sovereignty over the features, notwithstanding any possible question concerning may be subjected to a claim of territorial sovereignty. Nor is this a dispute concerning sea boundary delimitation the nature of the features in the South China Sea even though the status of the feature relates to the entitlement to maritime zones between low-tide elevations, islands, and reefs. Tribunal relied upon satellite imagery that had been conducted on the area and direct surveys that had been carried out by navies or otherwise and clarified that The Scarborough shoal where they had disputed on was reefs which means the maritime feature where cannot sustain human, habitation, or economic life of their own and so have no exclusive economic zone (EEZ)[2] or continental shelf[3] according to article 121 of the convention. As a result, there are no maritime rights to restrict the marines’ activities and there are no overlapping entitlements between China and the Philippines.
Thirdly, the issue which China breached the maritime rights of the Philippines. The Tribunal awarded according to article 77 of the convention that “The coastal State exercises over the continental shelf sovereign rights[4] for the purpose of exploring it and exploiting its natural resources.” and article 56 that “In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this 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. Moreover, the Tribunal concluded that China has breached the article 58(3) of the convention that “In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.” by failing to respect the sovereign rights of the Philippines over its fisheries in its exclusive economic zone.
Finally, the Tribunal has awarded on China’s maritime activities with regards the practices it had adopted for the purpose of large-scale construction and reclamation at Spratly Islands. 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. Also, 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 found that China was in breach of the Convention for failing to stop the fishing vessels from engaging in harmful harvesting practices and also for its island-building activities by 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 according to article 192 of the convention that “States have the obligation to protect and preserve the marine environment.” and article 194 that “States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment. The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other form of marine rights.”
In addition, the Tribunal concerned China’s law enforcement vessels at Scarborough Shoal 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. The Tribunal found that China, through the actions of its law enforcement vessels, endangered Philippine vessels and personnel, created a serious risk of collision, and was in breach of Article 94 of the Convention concerning the duties of the flag state.
The future conduct of the state parties
The Philippines has requested the Tribunal to adjudge and declare that China shall respect the rights and freedoms of the Philippines under and comply with its duties under the Convention, including those relevant to the protection and preservation of the marine environment in the South China Sea, and shall exercise its rights and freedoms in the South China Sea with due regard to those of the Philippines under the Convention.
In contrast, China has not directly stated its position with respect to the Philippines requests after the dispute was awarded. However, Chinese officials have made a number of statements on the importance of good faith and the duties incumbent on States pursuant to the convention such as article 300 of the convention that “States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” Recently, China’s Foreign Minister proclaimed that China acts in accordance with law and safeguarding the sanctity of the UNCLOS.
After the Philippines requests, the Tribunal has a consideration consists of 3 components which are
- The Tribunal is asked to adjudge and declare that China shall respect the rights and freedoms of the Philippines under the Convention.
- The Tribunal is asked to adjudge and declare that China shall comply with its duties under the Convention, including those relevant to the protection and preservation of the marine environment in the South China Sea.
- The Tribunal is asked to adjudge and declare that China shall exercise its rights and freedoms in the South China Sea with due regard to those of the Philippines under the Convention.
All of these propositions fall within the basic rule of “pacta sunt servanda”, expressed in Article 26 of the Vienna Convention on the Law of Treaties as: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” In essence, what the Philippines is requested is a declaration from the Tribunal that China shall do what it is already obliged by the Convention to do.
References
Award PCA Case N.2013-19, In the matter of the south china sea arbitration. 12 July 2016.
Award on Jurisdiction and Admissibility PCA Case N.2013-19, In the matter of the south china sea
arbitration. 29 October 2015.
United Nations Convention on the Law of the Sea 1982. United Nations.
Vienna Convention on the Law of Treaties 1969. United Nations.
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. Research Society of International Law (RSIL).
[1] a political concept that refers to dominant power or supreme authority and it is essentially the power to make laws but in terms of international law sovereignty refers the concept of the qualification of power which means state has all rights, powers, and jurisdiction. (Legal Information Institute, Cornell University)
(International Laws, Professor Dr. Jaturon Thirawat, Winyuchon Publication House)
[2] The exclusive economic zone is an area beyond and adjacent to the territorial sea and shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.
(UNCLOS)
[3] The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines (UNCLOS)
[4] A legal right possessed by state or its agencies and enables a state to carry out its official functions for the benefit of public. (USLEGAL)
