Game Changer? Philippines Seeks UNCLOS Arbitration with China Over the South China Sea

by Julian Ku

In a potentially huge development, the Government of the Philippines announced earlier today that it has filed for arbitration with China under the UN Convention for the Law of the Sea. The Philippines’ claim places China’s controversial sovereignty claim over the South China Sea (see right) squarely before an international arbitral tribunal convened under Article 287 of UNCLOS.  According to the Philippines Foreign Minister, here are the main claims:

  1. The Philippines asserts that China’s so-called nine-dash line claim that encompasses virtually the entire South China Sea/West Philippine Sea is contrary to UNCLOS and thus unlawful.
  2. Within the maritime area encompassed by the 9-dash line, China has also laid claim to, occupied and built structures on certain submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippine continental shelf, or the international seabed.
  3. In addition, China has occupied certain small, uninhabitable coral projections that are barely above water at high tide, and which are “rocks” under Article 121 (3) of UNCLOS.China has interfered with the lawful exercise by the Philippines of its rights within its legitimate maritime zones, as well as to the aforementioned features and their surrounding waters.
  4. The Philippines is conscious of China’s Declaration of August 25, 2006 under Article 298 of UNCLOS (regarding optional exceptions to the compulsory proceedings), and has avoided raising subjects or making claims that China has, by virtue of that Declaration, excluded from arbitral jurisdiction.

Some early thoughts.  As I argued here, I still think the Philippines has a massive jurisdictional problem because of China’s Article 298 declaration excludes the following certain subjects from this kind of arbitration.

(a)(i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles….

China is claiming (at least it has often seemed to be claiming) that it has complete sovereignty over the South China Sea (per the map above). I take the Philippines is arguing that China’s South China Sea claim is not really a “sea boundary  delimitation” within the meaning of Article 15.  Nor is the Chinese SCS claim about “historic bays” and “titles”.  I don’t think that the Philippines has a hopeless case, but I do think they will face a huge challenge to get any arbitral tribunal to assert jurisdiction here, especially since one judge will be appointed by China.

On the plus side, if the Philippines manages to get past the jurisdictional hurdle, it seems to me that they have a very good chance of prevailing since China’s claim is hard to square with the rest of UNCLOS.  Moreover, they force China to go on the defensive here without actually threatening China in any military or economic way.

Strategically, I think I understand why the Philippines has filed this claim. They have very little leverage with China: economically, politically, or militarily.  In this forum, the worst case scenario is the Philippines will lose on jurisdiction. This shouldn’t affect the merits of their claims, though.  For China, the worst case scenario is that it loses on the merits and would have to face the decision of whether to comply with the tribunal.  If they lose, I can see China simply withdrawing from UNCLOS.

In any event, I think it is safe to say this it a game changer in the long-running South China Sea dispute.  It is also, without question, the most important case that has ever been filed under the dispute resolution procedures of UNCLOS.  It will be a crucial test of the UNCLOS institutions, as well as of UNCLOS members.  I am skeptical that China will allow itself to be drawn into serious international adjudication (see my argument here), but it will be fascinating to see how China reacts.

http://opiniojuris.org/2013/01/22/game-changer-philippines-seeks-unclos-arbitration-with-china-over-the-south-china-sea/

6 Responses

  1. Difficult cases in international arbitration have been done in the past.  This certainly beats a war over the “cow’s tongue.”  Another aspect of this is that it creates a different dynamic for the bilateral negotiations as well as an impact on other Korea-China, Japan-China disputes to the North.  Now, if cooler heads can prevail in sorting all this out without a military conflict.  The world can only pray.  There are merits to all the parties positions – the essence of an important and fascinating international arbitration.
    Best,
    Ben

  2. I think it’s a game changer, Julian.  The big initial question for me is whether the tribunal decides to accept jurisdiction.  If so, on what grounds?  I think we all suspect that the tribunal will avoid making rulings on the sovereignty of the Scarborough Shoal or any other rock. Any way you cut it, I think the case will have major ramifications for settlement of South China Sea issues.
    Best,
    Steve

  3. The Philippines faces immense obstacles insofar as its own Constitution and the international Treaties which preceded the establishment of the Philippines as a sovereing entity appear on the face of it to delimit national territory to areas lying East of 118 degrees longditude. That does not make these contested areas Chinese, but it will be hard to argue that they are an integral part of the Philippines either
    During the 2012 standoff over the Scarborough Shoal the Philippines’ DFA went to great lengths to publish on its website the legal basis for its assertion of sovereignty, making explicitly clear that this was not based on either geographical proximity or on the extension of an EEZ in the area. Rather, they claimed a prescriptive right over terra nullius on the basis that they exerted de facto control
    The de facto control argument will be hard to sustain where the suit is based on patterns of Chinese construction and occupation; on the contrary – and ignoring any ancient claims – China is able to show continuity of control over a number of these rocks and reefs going back to the early years of the Peoples’ Republic. It is of course also worth noting that the “Cow’s Tongue” 9-dash line was originally promulgated by the Nationalists under Chiang Kai Chek, and that, as the political successor to that regime, Taiwan also maintains similar claims either concurrent to or aligned with the Chinese position
    The problem, of course, is that this issue – which has bubbled away quite merrily for the past 40 years without many major incidents – is no longer a legal dispute, but is almost entirely geopolitical. How strange that Vietnam, the Philippines and Japan should all spark into action so suddenly and with such apparent coordination in the immediate aftermath of Clinton/Obama’s “Asian Pivot” announcement, and how notable it is that even scholarly observers such as Benjamin G Davis instinctively assume that all the disputing nations are in conflict with China: Korea is not in disagreement with China, but with Japan – as indeed is Taiwan with Japan over the Diaoyu Islands – but those rather inconvenient facts are quickly forgotten. As, of course, is the fact that the USA still refuses to sign up ot UNCLOS: read this any weep at the hypocrisy http://thecable.foreignpolicy.com/posts/2012/07/16/law_of_the_sea_treaty_dead_in_the_water

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