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Marine Entitlements in the South China Sea: The Arbitration Between the Philippines and China

Published online by Cambridge University Press:  29 March 2017

Lucy Reed  and
Kenneth Wong
Lucy Reed
Affiliation:
Centre for International Law, National University of Singapore
Kenneth Wong
Affiliation:
Freshfields Bruckhaus Deringer
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Type
International Decisions
Information
American Journal of International Law , Volume 110 , Issue 4 , October 2016 , pp. 746 - 760
Copyright
Copyright © American Society of International Law 2016

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References

1 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397 [hereinafter UNCLOS], available at http://www.un.org/depts/los/. The Philippines became a party to the Convention in 1984, and China did so in 1996.

2 In re South China Sea Arbitration (Phil. v. China), PCA Case No. 2013-19, Award (UNCLOS Annex VII Arb. Trib. July 12, 2016) [hereinafter Award]. The documents relating to the case cited herein are available at http://www.pca-cpa.org unless otherwise indicated.

3 Throughout the proceedings, China rejected and returned correspondence from the Tribunal (sent by the Permanent Court of Arbitration, which served as the registry), reiterating that it “does not accept the arbitration initiated by the Philippines.” China did not participate in the establishment of the Tribunal, submit any pleadings, attend any hearings, reply to the Tribunal's invitations to comment on specific issues of substance or procedure, or advance any funds toward the cost of the arbitration. See Award, para. 116. But the Tribunal treated China's position paper of December 7, 2014, and certain other communications from China as constituting, in effect, a plea concerning jurisdiction, although the Tribunal did not limit itself to deciding jurisdiction on the basis of China's arguments. See id., para. 130.

4 See UNCLOS, supra note 1, Annex VII, Art. 9 (providing in part: “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings”).

5 The other Tribunal members were Thomas A. Mensah, the first ITLOS president; Jean-Pierre Cot, a current ITLOS judge; Stanislaw Pawlak, a current ITLOS judge; and Alfred H. A. Soons, Emeritus Professor of Public International Law, Utrecht University School of Law.

6 These communications included four letters between May 20, 2016, and June 10, 2016, from the Chinese ambassador to the Netherlands addressed to individual members of the Tribunal. Award, paras. 97–103.

7 In re Arbitration Between the Philippines and China, PCA Case No. 2013-19, Rules of Procedure, Art. 25(2) (Aug. 27, 2013). See Award, paras. 124–25.

8 In re Arbitration Between the Philippines and China, PCA Case No. 2013-19, Award on Jurisdiction and Admissibility (UNCLOS Annex VII Arb. Trib. Oct. 29, 2015) (reported by John E. Noyes at 110 AJIL 102 (2016)).

9 See, e.g., Ministry of Foreign Affairs of China, Statement on the Award on Jurisdiction and Admissibility of the South China Sea Arbitration by the Arbitral Tribunal Established at the Request of the Republic of the Philippines (Oct. 30, 2015), at http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1310474.shtml.

10 Republic of China, Ministry of Interior, Boundary Dep’t, Map Showing the Location of the Various Islands in the South Sea (1948), reprinted in Award, fig.1.

11 Attachment to Permanent Mission of China to the Secretary-General of the United Nations, Note Verbale, No. CML/17/2009 (May 7, 2009); id., No. CML/18/2009 (May 7, 2009), reprinted in Award, fig.2.

12 China's conduct included issuance by the China National Offshore Oil Corp. of a notice of open blocks for petroleum exploration adjacent to the western edge of the nine-dash line, which lay beyond 200 nautical miles from any feature in the South China Sea claimed by China, see Award, para. 208, and China's objections to the Philippines’ Geophysical Survey and Exploration Contract 101 petroleum block, see id., map 4, based on China's “indisputable sovereignty over the Nansha islands and its adjacent waters,” see id., para. 209.

13 UN Conference on the Law of the Sea, Historic Bays: Memorandum by the Secretariat of the United Nations, para. 8, UN Doc. A/CONF.13/1 (Sept. 30, 1957), quoted in Award, para. 220.

14 Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahr.), 2001 ICJ REP. 40, 112–13, para. 236 (Mar. 16); Continental Shelf (Tunis. v. Libya), 1982 ICJ REP. 18, 73–74, para. 100 (Feb. 24); Fisheries (UK v. Nor.), 1951 ICJ REP. 116, 130 (Dec. 18).

15 In reaching this conclusion, the Tribunal also referred to other relevant disputes, including Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJREP. 246 (Oct. 12); Fisheries Jurisdiction (UK v. Ice.), 1974 ICJ REP. 3 (July 25); Fisheries Jurisdiction (Ger. v. Ice.), 1974 ICJ REP. 175 (July 25); and Maritime Delimitation, 22 R.I.A.A. 335 (Eri.-Yemen 1999).

16 UNCLOS, supra note 1, Art. 13(1).

17 Id., Art. 121(1).

18 The Tribunal did not accept the degree of accuracy or certainty that the Philippines ascribed to satellite imagery evidence it proffered, and so did not draw conclusions on the status of features on the basis of satellite imagery alone. See Award, paras. 322–26.

19 The Tribunal adopted the same position as the International Court of Justice in Territorial and Maritime Dispute (Nicar. v. Colom.), 2012 ICJ REP. 624, 641, para. 26 (Nov. 19). Award, para. 309.

20 In Article 46, UNCLOS, supra note 1, defines “archipelagic States” as states that are “constituted wholly by one or more archipelagos and may include other islands.”

21 Under id., Article 7(1), straight baselines may be drawn in “localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.”

22 See Urgent: China Not to Pursue Militarization of Nansha Islands in South China Sea: Xi, Xinhua, Sept. 25, 2015, available in Lexis, Xinhua General News Service; The President's News Conference with President Xi Jinping of China, No. 647, 2015 Daily Comp. Pres. Doc. (Sept. 25, 2015), at https://www.gpo.gov/fdsys/.

23 For details of damage to the reefs, see Award, paras. 976, 978.

24 Ministry of Foreign Affairs of China, Statement on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines (July 12, 2016), at http://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1379492.htm.

25 Id., Spokesperson Lu Kang's Remarks on Japanese Foreign Minister's Statement on the Award of South China Sea Arbitration Initiated by the Philippines (July 12, 2016), at http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1380245.shtml.

26 Id., Foreign Ministry Spokesperson Lu Kang's Remarks (July 28, 2016), at http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2535_665405/t1385371.shtml.

27 Under Article 12 of Annex VII to UNCLOS, supra note 1, the parties may seek a decision from the tribunal that made the award if a controversy arises between them on its “interpretation or manner of implementation,” but there is no expectation that either party will make such a request as a practical matter.

28 In a signal of its stance, China held live-fire drills near the Paracel Islands—not directly implicated in the Philippines-China arbitration—which ended the day before the award was released. See Ankit Panda, South China Sea: Days Before International Court Verdict, Chinese Navy Stages Live-Fire Drills, Thediplomat.com (July 11, 2016), at http://thediplomat.com/2016/07/south-china-sea-days-before-international-court-verdict-chinese-navy-stages-live-fire-drills/. Barely a week after the release of the award, China announced that it would carry out military drills in the South China Sea, though these appear to remain well within its internationally recognized territorial waters off Hainan Island. China has also threatened to declare an “air defense identification zone” over the South China Sea, similar to the one it declared over waters contested between Japan and China in 2013. See Christopher Bodeen, China to Close Part of South China Sea for Military Exercise, Navytimes.com (July 18, 2016), at http://www.navytimes.com/story/military/2016/07/18/china-close-part-south-china-sea-military-exercise/87262566.

29 Government of China, Statement on China's Territorial Sovereignty and Maritime Rights and Interests in the South China Sea (July 12, 2016), at http://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1379493.htm [hereinafter China's Territorial Sovereignty].

30 See, e.g., Viet Nam Ministry of Foreign Affairs, Press Conference on Chinese Maritime Surveillance Vessel's Cutting Exploration Cable of PetroViet Nam Seismic Vessel (May 29, 2011), at http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns110530220030/.

31 For the statement submitted by Vietnam's Foreign Ministry to the Tribunal (Dec. 5, 2014), see South China Sea Research Blog (Aug. 20, 2016), at https://seasresearch.wordpress.com/2016/08/20/document-statement-of-the-ministry-of-foreign-affairs-of-vietnam-transmitted-to-the-arbitral-tribunal-in-the-proceedings-between-the-philippines-and-china-dec-2014.

32 China's Territorial Sovereignty, supra note 29. Although this statement did not mention the nine-dash line, Macclesfield Bank (Zhongsha Qundao), the Spratly Islands (Nansha Qundao), the Pratas Islands (Dongsha Qundao), and the Paracel Islands (Xisha Qundao) are each encompassed within the nine-dash line. See Award, fig.2, supra note 11; fig.1, supra p. 749. In the statement, supra, the Chinese government formally and specifically declared for the first time that “China has historic rights in the South China Sea,” although it is not the first time that China claimed that the Spratly Islands (Nansha Qundao) are entitled to an EEZ and continental shelf.

33 UNCLOS, supra note 1, Art. 296(2).

34 Joint Statement of the Japan–United States–Australia Trilateral Strategic Dialogue (July 25, 2016), at http://www.state.gov/r/pa/prs/ps/2016/07/260442.htm.

35 See, e.g., Feng Zhang, The Paradox at the Heart of the South China Sea Ruling, Foreignpolicy.com (July 28, 2016), at http://foreignpolicy.com/2016/07/28/can-china-actually-be-benefiting-from-south-china-sea-ruling-paradox-hague-philippines; Jacques deLisle, The South China Sea Arbitration Decision: China Fought the Law, and the Law Won … or Did It?, FPRI E-Notes (July 12, 2016), at http://www.fpri.org/publications/.