Philippines v. China

The Republic of the Philippines v. The People’s Republic of China
Court	Permanent Court of Arbitration
Full case name	An Arbitration before an Arbitral Tribunal constituted under Annex VII to the 1982 United Nations Convention on Law of the Sea between the Republic of the Philippines and the People's Republic of China
Court membership
Judges sitting	Presiding Arbitrator: Thomas A. Mensah Members: Jean-Pierre Cot Rüdiger Wolfrum Alfred H. Soons Stanislaw Pawlak

China's nine-dotted line claim over the South China Sea, 1947

Philippines v. China is a pending arbitration case unilaterally brought by the Philippines concerning the legality of China's "nine-dotted line" claim over the South China Sea under the United Nations Convention on the Law of the Sea (UNCLOS). On 19 February 2013, China officially refused to participate in the arbitration because according to China, its 2006 Declartion covers the disputes brought by the Philippines and that this case concerns the sovereignty issue, thus preventing the Arbitral Tribunal from asserting its jurisdiction over the case. On October 29, 2015, the Permanent Court of Arbitration ruled that it has jurisdiction over the case, taking up seven of the 15 submissions made by Manila.

Background

The dispute has been affected by the fact that, after Japan renounced all claims to the Spratly Islands and other conquered islands and territories in the Treaty of San Francisco and Treaty of Peace with the Republic of China (Taiwan) signed on September 8, 1951, it did not indicate successor states since China was not invisted to the treaty talks held in San Francisco. In reaction to that, on 15th August, the Chinese government issued the Declaration on the Draft Peace Treaty with Japan by the US and the UK and on the San Francisco Conference by the then Foreign Minister Zhou Enlai, affirming China's sovereignty over the archipelagos in the South China Sea, including the Nansha Islands, and protesting about the absence of any provisions in the draft on who shall take over the South China Sea islands following Japan's renouncement of all rights, title and claim to them. It reiterated that "the Chinese government of the day had taken over those islands" and that the PRC's rightful sovereignty "shall remain intact".

On 28 April 1952, the United States presided over the signing of the Treaty of Peace between Japan and the Republic of China. Article 2 of the document provided that "It is recognized that under Article 2 of the Treaty of Peace which Japan signed at the city of San Francisco on 8 September 1951 (hereinafter referred to as the San Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the Paracel Islands."

The Philippines bases its claim on its geographical proximity to the Spratly Islands. In 1956, the dispute escalated after Filipino national Tomas Cloma and his followers settled on the islands and declared the territory as "Freedomland", now known as Kalayaan, in favor of occupation by the Philippines.

The People's Republic of China claims it is entitled to the Paracel and Spratly Islands because they were seen as integral parts of the Ming dynasty. China and Taiwan have these same territorial claims. The Republic of China (Taiwan) took control of the largest island - Taiping Island - in the group since 1946.

Vietnam states that the islands have belonged to it since the 17th century, using historical documents of ownership as evidence. Hanoi began to occupy the westernmost islands during this period.

In the early 1970s, Malaysia joined the dispute by claiming the islands nearest to it.

Brunei also extended its exclusive economic zone, claiming Louisa Reef.

Section 2 of Part XV of the Convention

China made a clear declaration in accordance with the UN Convention on the Law of the Sea in 2006 to exclude compulsory arbitration on sovereign disputes and maritime delimitation. More than 30 other countries, including the United Kindom, have made similar declarations.

Main claimants

Territorial claims in the South China Sea

Philippine stance

The Philippines is contending that the "nine-dotted line" claim by China is invalid because it violates the UNCLOS agreements about exclusive economic zones and territorial seas. It says that because most of the features in the South China Sea, such as most of the Spratly Islands, cannot sustain life, they cannot be given their own continental shelf as defined in the convention.

Chinese stance

China refuses to participate in the arbitration, stating that several treaties with the Philippines stipulate that bilateral negotiations be used to resolve border disputes. It also accuses the Philippines of violating the voluntary Declaration on the Conduct of Parties in the South China Sea, made in 2002 between ASEAN and China, which also stipulated bilateral negotiations as the means of resolving border and other disputes. China issued a position paper in December 2014 arguing the dispute was not subject to arbitration because it was ultimately a matter of sovereignty, not exploitation rights. Its refusal will not prevent the Court from proceeding with the case.

Vietnamese stance

On December 11, 2014, Vietnam filed an intervention to the case which makes three statements: Vietnam supports the filing of this case by the Philippines; it rejects China's "nine-dashed line"; and it asks the Court to take note of Vietnam's claims on certain islands such as the Paracels.

Other claims

In May 2009, Malaysia and Vietnam, as well as Vietnam alone, filed claims to the International Tribunal for the Law of the Sea with regard to the islands. This was in relation to extending their claimed continental shelves and Exclusive Economic Zones. The People's Republic of China rejected the claims since those violate the "nine-dotted line". The Philippines challenged them, stating that the claims overlap with the North Borneo dispute. Indonesia made a comment on China's claim by saying that the features are rocks and cannot sustain life, effectively calling its claim invalid. The Philippines echoed Indonesia's claims, further stating that the islands belong to them through geographic proximity.

Brunei sent its own claim through a preliminary submission.

Hearings

On July 7, 2015, case hearings began with the Philippines asking the Permanent Court of Arbitration at The Hague to invalidate China's claims. The hearings were also attended by observers from Indonesia, Japan, Malaysia, Thailand and Vietnam. The case has been compared to Nicaragua v. United States due to similarities of the parties involved such as that a developing country is challenging a permanent member of the United Nations Security Council in an arbitral tribunal.

On 29 October 2015, the court ruled that it had the power to hear the case. It agreed to take up seven of the 15 submissions made by Manila, in particular whether Scarborough Shoal and low-tide areas like Mischief Reef can be considered islands. It set aside seven more pointed claims mainly accusing Beijing of acting unlawfully to be considered at the next hearing on the case's merits. It also told Manila to narrow down the scope of its final request that the judges order that "China shall desist from further unlawful claims and activities."

The arbitral tribunal scheduled the hearing on merits of the case from November 24 to 30, 2015. The tribunal is due to report in 2016.

International reactions

Countries and multinational bodies have either expressed support or opposition to the Philippines move to take the South China Sea dispute to the Permanent Court of Arbitration. These entities however may not necessarily support either sides when it comes to the ownership of the disputed area affected by the case.

National governments

Support for the arbitration

2

Opposition against the arbitration / Support for bilateral talks among the parties involved

2

Xinhua reported in May 2016 that about 40 countries had expressed their support on China's stance on the arbitration case which is the preference for bilateral talks among parties involved in the dispute. Fiji and Slovenia, reportedly among the nations that sided with China denied expressing support. Slovenia said they "do not take sides" with the issue" while Fiji insisting on its strict non-alignment foreign policy denies supporting China but remarked that it has friendly relations with all coastal countries surrounding the South China Sea including China.

India in particular has made contradictory statements regarding the arbitration case.In 2015, during the 5th East Asia Summit, India stated that "territorial disputes must be settled through peaceful means as was done by India and Bangladesh recently using the mechanisms provided under UNCLOS". It also supported the Philippines move to take the issue to the Permanent Court of Arbitration.

South Korea, has maintained its neutrality being silent on the dispute. During the 2015 East Asia Summit, President Park Geun-hye stated that concerned parties should observe the Declaration on the Conduct of Parties in the South China Sea and that disputes should be resolved according to international law. "Korea has consistently stressed that the dispute must be peacefully resolved according to international agreements and code of conduct" and "China must guarantee the right of free navigation and flight.

In April 13, 2016, in a trilateral communiqué by the foreign ministers of India, China, and Russia, the three countries issued a statement regarding the South China Sea dispute should not be "internationalized" but resolved by the parties concerned. All related disputes should be addressed through negotiations and agreements between the parties concerned. A week later India made a joint statement with the United States that maritime security and freedom of navigation in the region including the South China Sea should be upheld and expressed support of a "rules-based order and regional security architecture conducive to peace and prosperity in the Asia-Pacific and Indian Ocean".

Malaysia who has territorial claims in the South China Sea, as well as Singapore and Thailand sent observers to the proceedings.

Multinational bodies

Arab League

Arab League Secretary General Nabil al-Araby said that Arab countries support China's position on ‘safeguarding’ its sovereignty and territorial integrity. The Arab League however stressed that the rights of sovereign nations as well as the U.N. Convention on the Law of the Sea (UNCLOS) signatories to choose how to solve their disputes should be respected as well.

European Union

European Union encourages all parties to seek peaceful solutions, through dialogue and cooperation, in accordance with international law – in particular with the UN Convention on the Law of the Sea. A foreign affairs of the EU issued a statement saying "Whilst not taking a position on claims, the EU is committed to a maritime order based upon the principles of international law, in particular as reflected in the United Nations Convention on the law of the Sea (UNCLOS),".

Group of Seven

The Group of 7 (Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States as well as a representation from the European Union) made a statement that the bloc should issue a "clear signal" to China's overlapping claims. European Council President Donald Tusk said on the sidelines of a summit in Ise-Shima that the bloc should take a "clear and tough stance" on China's contested maritime claims.

Shanghai Cooperation Organisation

In a statement of SCO Secretary-General Rashid Olimov on South China Sea issue, all SCO countries agreed and supported China's efforts made to safeguard peace and stability in the South China Sea. Directly concerned states should resolve disputes through negotiation and consultation in accordance with all bilateral treaties and the Declaration on the Conduct of Parties in the South China Sea (DOC), the statement said. It urged to respect the right of every sovereign state to decide by itself the dispute resolution methods, and strongly opposed outsiders' intervention into the South China Sea issue, as well as the attempt to internationalize the dispute.

Foreign based organizations

Members from the Confederation of Toronto Chinese Canadian Organizations consisting of more than 80 Chinese Canadian organizations voiced their support for China's stance on the sovereignty issue of the South China Sea. The delegates bashed the deal reached between the United States and the Philippines which, in their view, troubled the region with instability.

See also

• Baselines of the Chinese territorial sea
• Baselines of the Philippines
• First island chain
• Great wall of sand
• List of irredentist claims or disputes
• Territorial disputes in the South China Sea