Introduction

On Tuesday, 7 July 2015, the Arbitral Tribunal commenced the hearing on jurisdiction and admissibility in the arbitration submitted by the Republic of the Philippines against the People’s Republic of China under Annex VII to the United NationsConvention on the Law of the Sea.
The hearing will end on or before 13 July 2015 [1].

Background

The Philippines v. China arbitration commenced on 22 January 2013 when the Philippines served China with a Notification and Statement of Claim “with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea.” On 19 February 2013, China presented the Philippines with a diplomatic note in which it described “the Position of China on the South China  Sea  issues,”  and  rejected and  returned  the  Philippines’  Notification.   China  has  since  continued  to reiterate its position of non-acceptance of and non-participation in the arbitration. Nonetheless, the Arbitral Tribunal has noted that it remains open to China to participate in the proceedings at any time [1].

Analysis

In its Notification and Statement of Claim, the Philippines has requested the Arbitral Tirbunal to issue an Award that [2]:

  • Declares that China’s rights in regard to maritime areas in the South China Sea, like the rights of the Philippines, are those that are established by UNCLOS, and consist of its rights to a Territorial Sea and Contiguous Zone under Part II of UNCLOS, to an EEZ under Part V, and to a Continental Shelf under Part VI; [1st claim]
  • Declares that China’s maritime claims in the South China Sea based on its so-called "nine-dash line" are contrary to UNCLOS and invalid; [2nd claim]
  • Requires China to bring its domestric legislation into conformity with its obligations under UNCLOS; [3rd claim]
  • Declares that Mischief Reef and McKennan Reef are submerged features that form part of the Continental Shelf of the Philippines under Part VI of the Convention, and that China's occupation of the construction activities on them violate the sovereign rights of the Philippines; [4th claim]
  • Requires that China ends its occupation of and activities on Mischief Reef and McKennan Reef; [5th claim]
  • Declares that Gaven Reef and Subi Reef are submerged features in the South China Sea that are not above sea level at high tide, are not islands under the Convention, and not located on China's Continental Shelf, and that China's occupation and construction activities on these features are unlawful; [7th claim]
  • Requires China to terminate its occupation and activities on Gaven Reef and Subi Reef; [8th claim]
  • Declares that Scarborough Shoal, Johnson Reef, Cuarteron Reef and Fiery Cross Reef are submerged features that are below sea level at high tide, except that each has small protrusions that remain above water at high tide, which are "rocks" under Ariticle 121(3) of the Convention and which therefore generate entitlement only to a Territorial Sea no broader than 12 M; and that China has unlawfully claimed maritimed entitlements beyond 12 M from these features; [9th claim]
  • Requires that China refrain from preventing Philippine vessels from exploiting in a sustainable manner the living resources in the waters adjacent to Scarborough Shoal and Johnson Reef, and from undertaking other activities inconsistent with the Convention at or in the vicinity of these features; [10th claim]
  • Declares that the Philippines is entitled under UNLCOS to a 12 M Territorial Sea, a 200 M Exclusive Economic Zone, and a Continental Shelf under Part II, V, and VI of UNCLOS, measured from its archipelagic baselines; [11th claim]
  • Declares that China has unlawfully claimed, and has unlawfully exploited, the living and non-living resources in the Philippines' Exclusive Economic Zone and Continental Shelf, and has unlawfully prevented the Philippines from exploiting living and non-living resources within its Exclusive Economic Zone and Continental Shelf; [12th claim]
  • Declares that China has unlawfully interfered with the exercise by the Philippines of its rights to navigate and other rights under the Convention in the areass within and beyond 200 M of the Philippines' archipelagic baselines; and [13th claim]
  • Requires that China desist from these unlawful activities. [14th claim]

Main points in the Philippines' Statement of Claims in this case.

The  Philippines  argues  that  there  are  disputes  between  it  and  China  on  the interpretation  or  application  of  the  provisions  of  UNCLOS  other  than  those  on  territorial sovereignty, boundary delimitation or historic title. The disputes includes [3]:

A. The Philippines requests the Arbitral Tribunal to rule that China can only claim  rights  to  maritime  space  in  maritime  zones  measured  from  land  territory  (including islands), and that claims from the nine-dash line are not consistent with UNCLOS. The main purpose of the case seems to be to challenge the legality of China’s claim to historic rights and jurisdiction inside the nine-dash line.
B. The second issue raised in the Statement of Claim concerns maritime claims that can be made from the disputed islands currently occupied by China, that is, Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are "rocks" entitled only to 12 nm Territorial Sea. It also requests the Tribunal to declare that China has unlawfully claimed maritime entitlements beyond 12 nm from these features and has unlawfully interfered with the exercise by the Philippines of its rights and freedoms in the maritime space surrounded the Scarborough Shoal and Johnson Reef.
C. The third major issue raised in the Statement of Claim concerns the geographic features that are currently occupied by China but do not meet the definition of an island as set out in Article 121(1) because they are not naturally formed areas of land above water at high tide (these being Mischief Reef, McKennan Reef, Gaven Reef and Subi Reef). The Philippines argues that such features are not subject to a claim of sovereignty and that China’s occupation of them is illegal because they are part of the continental shelf of the Philippines.
D. The fourth major issue raised in the Statement of Claim is that China has unlawfully prevented Philippine vessels from exploiting the living resources in the waters “adjacent to” Scarborough Shoal and Johnson Reef. The Philippines has requested the Tribunal to issue an Award that requires China to refrain from preventing Philippine vessels from exploiting, in a sustainable manner, the living resources in the waters “adjacent to” Scarborough Shoal and Johnson Reef, and from undertaking other activities inconsistent with UNCLOS “at or in the vicinity” of these features.


China's Responses to the Arbitration Case

On 19 February 2013, China presented the Philippines with a diplomatic note in which it described “the Position of China on the South China Sea issues,” and rejected and returned the Philippines’ Notification.

On 1 August 2013, China addressed a Note Verbale to the Permanent Court of Arbitration in which it reiterated its position that “it does not accept the arbitration initiated by the Philippines” and stated that it was not participating in the proceedings.

The Chinese Government has subsequently reiterated that it will neither accept nor participate in the arbitration thus initiated by the Philippines.

On 7 December 2014, the Chinese Ministry of Foreign Affairs released a Position Paper intended to demonstrate that the arbitral tribunal established at the request of the Philippines for the present arbitration ("Arbitral Tribunal") does not have jurisdiction over this case. No acceptance by China is signified in this Position Paper of the views or claims advanced by the Philippines. in releasing the paper China also reiterated that this Position Paper shall not be regarded as China's acceptance of or participation in this arbitration.

 

China's Positions

In the 7 December 2014 Position Paper, China has argued as below [4]: 

The essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which does not concern the interpretation or application of the United Nations Convention on the Law of the Sea ("Convention").

China has indisputable sovereignty over the South China Sea Islands (the Dongsha Islands, the Xisha Islands, the Zhongsha Islands and the Nansha Islands) and the adjacent waters.

The Philippines has summarized its claims for arbitration in three categories:First, China's assertion of the "historic rights" in the South China Sea is inconsistent with the Convention;Second, China's claim to entitlements, based on certain rocks, low-tide elevations and submerged features in the South China Sea, of 200 nautical miles and more, is inconsistent with the Convention. Third, China has unlawfully interfered with the Philippines' enjoyment and exercise of its rights under the Convention.

With regard to the first category of claims, it is obvious that the core of those claims is that China's maritime claims in the South China Sea have exceeded the extend allowed under the Convention. However, it is a general principle of international law that sovereignty over land territory is the basis for the determination of maritime rights. Only after the extent of China's territorial sovereignty in the South China Sea is determined can a decision be made on the extent of China's maritime claims in the South China Sea. As to the second category of claims, China believes that the nature and maritime entitlements of certain maritime features in the South China Sea cannot be considered in isolation from the issue of sovereignty. Regarding the third category of claims, China maintains that, based on its sovereignty over relevant maritime features and the maritime rights derived therefrom, China's relevant activities in the South China Sea are both lawful and justified. The Philippines claims that China's actions have encroached upon areas under its jurisdiction. Before this claim can be decided upon, sovereignty over the relevant maritime features must be ascertained and maritime delimitation completed.

By requesting the Arbitral Tribunal to apply the Convention to determine the extent of China's maritime rights in the South China Sea, without first having ascertained sovereignty over the relevant maritime features, and by formulating a series of claims for arbitration to that effect, the Philippines contravenes the general principles of international law and international jurisprudence on the settlement of international maritime disputes. To decide upon any of the Philippines' claims, the Arbitral Tribunal would inevitably have to determine, directly or indirectly, the issue of territorial sovereignty over both the maritime features in question and other maritime features in the South China Sea. Besides, such a decision would unavoidably produce, in practical terms, the effect of a maritime delimitation. The issue of territorial sovereignty falls beyond the purview of the Convention. China maintains that the Arbitral Tribunal manifestly has no jurisdiction over the present case.

Analaysis

China's Responses

The responses and positions from China, is quite clear that China regards the PCA Arbital Tribunal has no jurisdiction over the case presented by the Philippines, because any determination on the maritime zones cannot avoid the issue of the territorial sovereignty issue invoved which is the basis for the determination of such maritime zones and titles. However there are no provisions in the 1982 United Nations Convention on the Law of Sea (UNCLOS) on how to determine which State has the better claim to sovereignty over a disputed territory. In another words disputes on  the delimitation of maritime  boundaries are outside the jurisdiction of the Tribunal.

China has also made a formal declaration under Article 298 stating that it does not accept the system of compulsory procedures entailing binding decisions in section 2 of Part XV of UNCLOS  for any  of the categories of disputes listed in Article 298 [5].

Article 298 of  UNCLOS  provides that States may make a formal declaration to the UN SecretaryGeneral giving notice to all other parties that they do not accept the compulsory procedures entailing binding decisions  in  Section 2 of  Part XV  for certain categories of disputes. These
categories are:
(a)  disputes concerning the interpretation or application of  articles15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles;
(b)  disputes  concerning  military  activities,  including  military  activities  by government vessels and aircraft engaged in non-commercial service;
(c)  disputes  in  respect  of  which  the  Security  Council  of  the  United  Nations  is exercising the functions assigned to it by the Charter of the United Nations.

Flaws and Inconsistency in Philippines' Satement Claims

In its Satement of Claims, the Philippines further states that it  has avoided raising any subjects  or making any claims that China  has  excluded by its Declaration  under Article 298, especially those concerning boundary delimitation or historic titles. 

A clause by clause analysis

1st Claim: There should be no problem with China on the 1st Claim made by the Philippines because China has also ratified the UNCLOS and thus shall bind to it, however, it should be noted that China's rights are all those under UNCLOS and other Internal Custom Laws. Note that China has not given up "historic bays or titles" if any, and rights established in UNCLOS is not limited to the few mentioned in Philippines's 1st claim.

2nd Claim: The statement itself is problematic because its assumes China's claims in the South China Sea is based on the "nine-dash line", which is not the case because the exact meanings of the nine-dash line has not been testified. China has consistantly emphasized its position on the sovereignty of the four group of islands in the South China Sea and the adjacent waters, the nine-dash line was more a product of China's territorial and maritime claims in the South China Sea, instead of the basis of China's claims, it is wrong to say China made it claims based on the nine-dash line.

As China has excepted the compulsory procedures entailing binding decisions  in  Section 2 of  Part XV  for certain categories of disputes, and the nine-dash line was existant even before the UNCLOS came into force, thus the exact meaning of the nine-dash line should be clarified first, probably together with the settlement of the territorial and maritime disputes, before any conclusion that it is "contrary to UNCLOS and invalid".

3rd Claim: Likely to 1st claim, there should be no problem for China to conform to UNCLOS.

4th to 9th Claim: As China has rightfully pointed in its Position Paper, the nature and maritime entitlements of certain maritime features in the South China Sea cannot be considered in isolation from the issue of sovereignty. As the sovereignty of these features, will affect wehther the Philippines can unilaterally claim its Continental Shelf and EEZ, as well as whether China has the rights to activities on these features and their surrounding waters. Obviously the Arbital Tribunal cannot just rule feature's maritime entitlements based on just its characteristics, without considering the territorial disputes over the features themselves, not forgetting that the features mentioned here by the Philippines are just part of the Spratly Islands group. When viewed as a combined group, the maritime entitlement of these features may again differ from its maritime entitlement when viewed as individuals.

10th to 14th Claims: Regarding the third category of claims, China maintains that, based on its sovereignty over relevant maritime features and the maritime rights derived therefrom, China's relevant activities in the South China Sea are both lawful and justified. The Philippines claims that China's actions have encroached upon areas under its jurisdiction. Before this claim can be decided upon, sovereignty over the relevant maritime features must be ascertained and maritime delimitation completed.

The Philippines Arguments at the Hague Hearing:

In his opening statement during the 7 July 2015 hearing in Hague to decide on whether the Tribunal has jurisdiction and admissity on the Philippines vs. China case, by the Philippine Foreign Secretary Albert del Rosario [6], the following claims are summarized:

– First, that China is not entitled to exercise what it refers to as “historic rights” over the waters, seabed, and subsoil beyond the limits of its entitlements under the Convention;

– Second, that the so-called nine-dash line has no basis whatsoever under international law insofar as it purports to define the limits of China’s claim to “historic rights”;

– Third, that the various maritime features relied upon by China as a basis upon which to assert its claims in the South China Sea are not islands that generate entitlement to an exclusive economic zone or continental shelf. Rather, some are “rocks” within the meaning of Article 121, paragraph 3; others are low-tide elevations; and still others are permanently submerged. As a result, none are capable of generating entitlements beyond 12M, and some generate no entitlements at all. China’s recent massive reclamation activities cannot lawfully change the original nature and character of these features;

– Fourth, that China has breached the Convention by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction; and

– Fifth, that China has irreversibly damaged the regional marine environment, in breach of UNCLOS, by its destruction of coral reefs in the South China Sea, including areas within the Philippines’ EEZ, by its destructive and hazardous fishing practices, and by its harvesting of endangered species.

One can notice the differences that Rosario's claims from its original Notification and Statement of Claim:

First, various attacks on "historic rights" that is added in this oral statement. While in the original Notification and Statement of Claim [7], "the Philippines further states that it  has avoided raising any subjects  or making any claims that China has excluded by its Declaration under Article 298, especially those concerning boundary delimitation or historic titles."

With regards to "historic rights", the Philippines team has concluded that UNCLOS does not recognize "historic rights", however, this conclusion is questionable. As pointed out by Professor Tommy Koh, there are two views on this difficult question of whether UNCLOS or international law recognise claims of historic rights and jurisdiction in the EEZ of other states. [8] The majority view is that Unclos prevails over customary international law and Unclos does not recognise claims of historic rights and jurisdiction in the EEZ of other states. In this view, whatever rights and jurisdiction another state had enjoyed under customary international law in the ocean space that is now within the EEZ of a coastal state are deemed to no longer exist. There is, however, a second view. Unclos does refer to "historic bays" and "historic title" in Articles 10, 15 and 298 (1) (a) (i). The minority view is that Unclos has, therefore, not done away with certain pre-existing historic rights, titles and jurisdictions. According to this view, a state's historic rights, title and jurisdictions can co-exist with Unclos. We will have to wait for a court or arbitral tribunal to decide on which is the correct view.

Second, in his 5th point, Rosario brought up the issue of marine environment damage. Similarly to other claims raised by the Philippines, without the territorial dispute settlement for the features concerned, the alleged environment damage on the features and within the maritime zones of these features cannot be raised as an arbitration point, especially if these area are not within the Philippines territorial or maritme rights. The claims also need to be supported and ascertained with statistic and solid evidence and supports.

 
Conclusion

This article has tried to analyze the points raised in the Philippines vs. China arbitrition case, from the above analysis, and as the proceedings has come to the current stage to decide the Jurisdication and Admissity of the Tribunal over this case, the following conclusions can be made:

The claims made by the Philippines are arguable and questionable, especially with regards to the exclusionary declarations filed by China to the Convention under Article 298 of the Convention.

However, as the Philippines has carefully crafted its claims, there is possibility that the Tribunal will rule it has jurisdiction and admissity on partial of these claims. In this case, the proceedings with the case will continue. As China has already rejected to participate in these proceedings, it is foreseeable that the Award in any form will not be enforceable with respects to China.

 

[1] Fifth Press Release dated 7 July 2015 by PCA, http://www.pca-cpa.org/showfile.asp?fil_id=3000

[2] Notification and Statement of Claims on the West Philippines Sea, http://www.dfa.gov.ph/index.php/component/docman/doc_download/56-notification-and-statement-of-claim-on-west-philippine-sea?Itemid=546.

[3] Robert Beckman, The Philippines v. China Case and the South China Sea Disputes  http://cil.nus.edu.sg/wp/wp-content/uploads/2013/03/Beckman-Asia-Society-LKY-SPP-March-2013-draft-of-6-March.pdf

[4] 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, 7 Dec 2014, http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml & http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217149.shtml

[5] Declaration under Article 298 by the Government of the People’s Republic of China (25 August 2006), see online: UN Division for Ocean Affairs and the Law of the Sea <http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China after ratification>

[6] The Philippines' opening salvo at The Hague http://www.rappler.com/nation/98769-philippines-china-hague-opening-statement-full-text

[7] See [4], paragraphs 7 and 33-40

[8] TERRITORIAL DISPUTES IN SOUTH CHINA SEA Making sense of the relevant laws  http://cil.nus.edu.sg/wp/wp-content/uploads/2010/01/Tommy-Koh-Making-sense-of-the-relevant-laws-The-Straits-Times-7Mar2014-page-A32.pdf

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