On Tuesday July 7th, a five-person panel of judges at the Permanent Court of Arbitration in The Hague heard the opening of the Philippines case against China concerning claims in the disputed South China Sea. Citing the United Nations Convention on the Law of the Sea (UNCLOS), the Philippines hope to convince the tribunal that the court has jurisdiction in the dispute and should intervene. If the tribunal ultimately declares the court has jurisdiction in the dispute, then the court will make moves to determine actual claims. China has refused to take part in the case, arguing that the court has no authority to intervene in the dispute. While this tribunal does not garner the same attention as military standoffs in the South China Sea do, the legal implications of it are of a magnitude higher. This case is sure to attract the attention of the governments of every country that has a dispute with China.
In his opening statement before the tribunal, Philippine Foreign Minister Albert del Rosario said “The case before you is of the utmost importance to the Philippines, to the region, and to the world.” He added, “In our view, it is also of utmost significance to the integrity of the convention [UNCLOS], and to the very fabric of the legal order of the seas and oceans.” What is at stake is not only the claim by the Philippines but international law, in this case UNCLOS itself.
The Philippines have raised five key points against China’s claims in the South China Sea; China is not entitled to exercise “historic rights” over the region, China’s nine dash line has no international legal basis, China’s claims are to geographical bodies which under international law do not confer EEZ zones, China has violated the sovereign right and jurisdiction of the Philippines, and finally, China has violated UNCLOS by damaging the regional marine environment.
The proceedings will last until July 13th though a decision on jurisdiction will still be months away. The Permanent Court of Arbitration is a 117-state body that rules on disputes between countries and is based in The Hague in the Netherlands. The same day of the opening of the tribunal, Chinas ambassador to the Philippines offered new bilateral talks to settle the dispute. The government in Manila flat out rejected this offering which the timing of leaves one to suspect that China might be concerned of the eventual outcome of the tribunal.
China has publicly refused to take part in the proceedings and is instead seeking to solve the dispute through bilateral talks. When asked by the tribunal to submit counterarguments, China instead submitted a “position paper” declaring that the court has no jurisdiction over the dispute. China argued that it is entitled to reject arbitration in disputes concerning boundaries, historic titles, or military activity since in 2006 it filed a formal declaration that invoked the opt-out clause of Article 298 of UNCLOS. China has also argued that by filing this case, the Philippines have violated the Declaration on the Conduct of Parties in the South China Sea (DOC). Signed in 2002 between China and ASEAN members, the DOC is a non-binding declaration that discourages claimant nations from engaging in activities that will heighten tensions in the disputed region.
The current case was first filed by the Philippines in January 2013 at a United Nations tribunal. At the time, del Rosario the said, “The Philippines has exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of its maritime dispute with China.” When filed, the Philippines lacked strong support from the U.S. and Japan and even other South East Asian countries. That lack of support has transformed into support as the dispute has flared up with China taking many provocative actions in the region including island building and increased military activity in recent years.
China claims all of the South China Sea, basing its claim on ancient Chinese maps which showed Chinese activity in the islands dating back centuries. Other countries in the dispute (Vietnam, Malaysia, Brunei, and Taiwan) though have their own basis for claims while none claim as much as China does except for Taiwan. The Philippines base their claim on geography and the legal principle Res nullius which states that an object is ownerless and free to be owned. Following WWII, Japan which controlled the islands relinquished its control without any specific beneficiary making them free for annexation. Furthermore regarding geography, all of the islands claimed by the Philippines fall within its 200-mile EEZ.
Relations between the Philippines and China in the South China Sea have only grown more hostile since the 2013 filing. In April 2014, the Philippine Navy was locked in a standoff with Chinese maritime surveillance ships near the disputed Scarborough Shoal. Since then, other standoffs and incidents have occurred between the two countries. Recently, joint military drills held by the Philippines with the U.S. and Japan near disputed territory has only further angered China.
The delegation from the Philippines strongly believes the tribunal will rule in their favor. If the tribunal declares it has no jurisdiction in the case, the Philippines will be forced to find another venue to bring the dispute to. On the other hand, a ruling by the tribunal that the court has jurisdiction will show that the basis of the claims by the Philippines are stronger than those of China. Where the case goes from there is anyone’s guess.
China has repeatedly sought to use bilateral talks with disputing nations rather than international bodies to solve the South China Sea dispute. Beijing does not want its disputes handled and decided upon by international courts as the pressure would then be on China as a member of the international community to abide by the decisions of the court. To reject the decision of an international body would certainly hurt the world opinion of China and encourage other countries to react the same to China. If the tribunal rules in the favor of the Philippines and the case eventually moves to arbitration, is China ready and willing to take part? For that matter, is China ultimately willing to accept the decisions of an international court if they are not in its favor?