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* {{flag|Pakistan}}<ref>{{cite news|title=China and Pakistan Reach Consensus on South China Sea Issue|url=http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1360240.shtml|accessdate=29 May 2016|publisher=Ministry of Foreign Affairs, the People's Republic of China|date=28 April 2016}}</ref>
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Revision as of 14:34, 18 June 2016

The Republic of the Philippines v. The People’s Republic of China
CourtPermanent Court of Arbitration
Full case nameAn 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 sittingPresiding Arbitrator:
Ghana Thomas A. Mensah
Members:
France Jean-Pierre Cot
Germany Rüdiger Wolfrum
Netherlands Alfred H. Soons
Poland Stanislaw Pawlak
Map of the South East China
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[1][2] concerning certain issues in the South China Sea [3] including 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 declaration under article 298[4] covers the disputes brought by the Philippines and that this case concerns sovereignty, thus it deems the arbitral tribunal formed for the case has no jurisdiction over the issue.[5] On 7 December 2014, a position paper was published by China to elaborate its position.[3][6] On October 29, 2015, the Permanent Court of Arbitration ruled that it has jurisdiction over the case,[7] taking up seven of the 15 submissions made by Manila.[8]

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[9] since China was not invited to the treaty talks held in San Francisco. In reaction to that, on 15 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".[10]

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."[10]

Historically, the Philippine boundary has been defined by its 3 treaties, Treaty of Paris (1898), Treaty of Washington (1900) and "Convention regarding the boundary between the Philippine Archipelago and the State of North Borneo". The South China Sea archipelagos were not part of those treaties.[11] The Philippines bases its claim on its geographical proximity to the Spratly Islands.[12] 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.[13] In 1956, Tomas Cloma apologized for his act and he returned the flag he stole from the Taiping Island. On Oct 2nd 1956, he wrote a letter and ensured he would not make further training ovyages or landings in the terretorial waters of China (ROC).[14]

Starting from 1970s, when the Philippines was ruled by the dictator[15] Ferdinand Marcos, it invaded and occupied 8 islands and reefs in the South China Sea.[16][17]

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.[12] China and Taiwan have these same territorial claims.[12] The Republic of China (Taiwan) took control of the largest island - Taiping Island - in the group since 1946.[13]

Vietnam states that the islands have belonged to it since the 17th century, using historical documents of ownership as evidence.[12] Hanoi began to occupy the westernmost islands during this period.[12]

In the early 1970s, Malaysia joined the dispute by claiming the islands nearest to it.[18]

Brunei also extended its exclusive economic zone, claiming Louisa Reef.[18]

Section 2 of Part XV of the Convention

China made declaration in accordance with the UN Convention on the Law of the Sea in 2006 not to accept any of the procedures provided for in section 2 of Part XV of the Convention. Many countries including the United Kingdom, Australia, Italy, France, Canada, and Spain made similar declarations to reject any of the procedures provided for in sections 2 of Part XV of the Convention with respect to the different categories of disputes.[19][20]

Australian international lawyers Rothwell and Stephens wrote in a published book that “[t]he Part XV dispute settlement mechanisms ... do not have jurisdiction over disputes arising under general international law”[3]

Australia has been mute regarding China's rejection to participate the arbitration since Australias has also rejected the the same procedures provided for in sections 2 of Part XV of the Convention. Australia emphasized that possible rulings of submissions such as No.3, No.4, No.6, and No.7 can affect many nations regarding maritime entitlements for maritime features. [21][22]

Participants

Territorial claims in the South China Sea

The court case involves the Philippines and China.[23]

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.[24] 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.[25]

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.[26][27][28] 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.[29] Its refusal will not prevent the Court from proceeding with the case.[30] According to Fu Kuen-chen of the Xiamen University, in dealing the South China Sea issue which involves many claimants, the unilatery format, or even binary format of the court case can never render resolution to the dispute. Fu insists that the best way to resolve the South China Sea dispute is through negotiation.[14][23]

Timeline

Critical dates of this arbitration are as follows:[31]

  • January 22, 2013 Philippines served China with notification and Statement of Claim
  • February 19, 2013 China rejected the Philippines’ Notification
  • July 11, 2013 First meeting of the Arbitral Tribunal at The Hague
  • July 31, 2013 Philippines commented on draft Rules of Procedure for the Tribunal
  • August 1, 2013 China indicated the PCA that “it does not accept the arbitration initiated by the Philippines”
  • August 27, 2013 Procedural Order No 1 issued via PCA Press Release on behalf of the Arbitral Tribunal[32]
  • March 30, 2014 Submission of the Philippines Memorial
  • May 14-15, 2014 Second meeting of the Arbitral Tribunal at The Hague
  • May 21, 2014 China comments on draft Procedural Order No 2 and observes that “it does not accept the arbitration initiated by the Philippines”.
  • May 29, 2014 Philippines comments on draft Procedural Order No 2
  • June 3, 2014 Procedural Order No 2 issued via PCA Press Release on behalf of the Arbitral Tribunal[33]
  • December 15, 2014 China had not filed a Counter-Memorial.[34]
  • December 17, 2014 Procedural Order No 3 issued via PCA Press Release on behalf of the Arbitral Tribunal[34]
  • March 16, 2015 The Philippines made a Supplemental Written Submission to the Arbitral Tribunal[35]
  • April 20-21, 2015 Third meeting of the Arbitral Tribunal at The Hague[35]
  • April 22, 2015 Procedural Order No 4 issued via PCA Press Release on behalf of the Arbitral Tribunal[35]
  • July 7-13, 2015 Hearing of the Arbitral Tribunal at The Hague[36][37]
  • October 29, 201 PCA issued the Award on jurisdiction and admissibility[38]

Claimants of the South China Sea

Taiwanese stance

The arbitration has not invited Taiwan to join the arbitration, opinion of Taiwan has not been sought.[39] Philippines claimed in the court that Taiping Island is a rock. In response,.[40] President Ma Ying-jeou of Taiwan rejected Philippines' claim as "patently false".[41] Taiwan has invited Philippines and five arbitrators from the PCA visit Taiping Island, Philippines rejected the invitation, and there was no response from the court of arbitration.[42]

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.[43]

Others stances

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[vague], 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[vague] claim invalid. The Philippines echoed Indonesia's claims, further stating that the islands belong to them through geographic proximity.[44][45]

Brunei sent its own claim through a preliminary submission.[46]

Hearings

On July 7, 2015, case hearings began with the Philippines asking the Permanent Court of Arbitration (PCA) at The Hague to invalidate China's claims. The hearings were also attended by observers from Indonesia, Japan, Malaysia, Thailand and Vietnam.[47] 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.[48]

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."[8]

The arbitral tribunal scheduled the hearing on merits of the case from November 24 to 30, 2015.[49] A final decision on case is expected by June 2016.[50]

Members of Arbitral Tribunal

The members of the Arbitral Tribunal are: [51]

Seven submissions PCA to judge

PCA found that the Tribunal has jurisdiction to consider the following seven Philippines’ Submissions. The number is the Philippines’ Submissions number. PCA reserved consideration of its jurisdiction to rule on No. 1, 2, 5, 8, 9, 12, and 14.[38]

  • No.3 Philippines’ position that Scarborough Shoal is a rock under Article 121(3).
  • No.4 Philippines’ position that Mischief Reef, Second Thomas Shoal, and Subi Reef are low tide elevations that do not generate entitlement to maritime zones.
  • No.6 Whether Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide elevations “that do not generate any maritime entitlements of their own".
  • No.7 Whether Johnson Reef, Cuarteron Reef, and Fiery Cross Reef do or do not generate an entitlement to an exclusive economic zone or continental shelf.
  • No.10 "premised on [the] fact that China has unlawfully prevented Philippine fishermen from carrying out traditional fishing activities within the territorial sea of Scarborough Shoal."
  • No.11 “China’s failure to protect and preserve the marine environment at these two shoals [Scarborough Shoal and Second Thomas Shoal].”
  • No.13 Philippines’ protest against China’s “purported law enforcement activities as violating the Convention on the International Regulations for the Prevention of Collisions at Sea and also violating UNCLOS”.

The Tribunal stated in the Award that there're disputes in all of the 15 submissions from the Philippines .[38] Obviously, in submissions such as No.3, No.4, No.6 and No.7, even China was not aware of any disputes stated by the Philippines before the initiation of arbitration. The Tribunal did not follow the rules and practice of international law in determining the existence of disputes. Chinese Society of International Law states that the PCA was trying to hide its incapability to prove that maritime entitlements of the nine features constitute the disputes.[3]

Analysis of academics

In favor of China

  • Chinese Society of International Law, explains in a published report that the Award for the case is completely erroneous. It's against the principle of international law.[3]
  • Helmut Türk, president of International Seabed Authority and former Judge of ITLOS said that arbitral tribunals have few people than ITLOS. It lacks representative and authoritative. Different minor opinions would lead to fragmentation of international judicial decision and damage the principle of stare decisis, which is against the purpose and integrity of UNCLOS and the trend of the international law.[52]
  • Zou Keyuan, Harris Professor of International Law at the Lancashire Law School of the University of Central Lancashire, United Kingdom, states in his published book that possible EEZ of the Spratly Archipelago is ignored in the Philippines' unilateral EEZ claim. Sovereignty over land territory always controls maritime jurisdiction. The Philippine argument of EEZ of the case may be an effort to muddy the juridical water and to try gain some international support for its weak sovereignty claim.[53]
  • Tom Zwart, Professor of Law, Utrecht University, and Director of the Cross-Cultural Human Rights Centre and Ruikun Sun, Fellow at the Netherlands School of Human Rights Research state that the case has so many actors and can affect many interests, that the binary format of a court case between 2 parties can never do justice to all. It also breaks the culture of harmony in Asia. As a result, the dispute should not be handled by a judicial tribunal.[23]
  • Wu Shicun, president and senior research fellow of the National Institute for South China Sea Studie, says that China’s claims are based on historic evidence. Philippines' occupation of South China Sea islands is illegal. The arbitration is against international law, and the only way for a peaceful resolution is to respect the commitment to negotiations.[54]
  • Stefan Talmon, director of the Institute of Public International Law at the University of Bonn, states that the Permanent Court of Arbitration does not have jurisdiction over territorial issues which are governed by customary international law, not UNCLOS.[55]
  • Legal scholar Anthony Carty of University of Hong Kong states in a published book that the case has been critisized and the Arbitration Tribinal now faces a claim which is not justiciable.[5]
  • Antonios Tzanakopoulos, associate professor of public international law at the University of Oxford, states in his published paper that the dispute of the case is obviously about sovereignty and maritime delimitation. Soverignty and maritime delimitation are beyond the stipulation of the UNCLOS. [56][57]
  • John Norton Moore, director of the Center for Oceans Law and Policy at the University of Virginia Law School has asserted that the nine-dashed line is not in China's interest, saying: "“If others were to do the same thing around the world, that China has done in the nine-dash line, it would be extremely harmful to the interests of China around the world.”[58]
  • Richard Javad Heydarian, an Assistant Professor in political science at De La Salle University who is a past policy advisor at the Philippine House of Representatives (2009-2015) has observed that the ICA Tribunal has no mechanism to enforce any unfavorable verdict against China.[59]
  • Kuan-Hsiung Wang, a professor at the Graduate Institute of Political Science, National Taiwan Normal University, has characteriuzed the claims by the Philippines as "Dubious", opining that the Philippines is undermining efforts to resolve disputes and promote stability.[60]\

In favor of the Philippines

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.

13 countries (Bahrain, Djibouti, Egypt, Iraq, Jordan, Kuwait, Mauritania, Morocco, Oman, Somalia, Syria, Tunisia, United Arab Emirates) of Arab League and one country (Uzbekistan) of the Shanghai Cooperation Organisation are currently not listed here. (See Talk page)

2

In May 2016, Chinese Foreign Ministry spokeswoman Hua Chunying said that there're more than 40 countries that had expressed their support on China's position.[96] In June 2016, it has been reported nearly 60 countries support China's position.[97] [86] News reporter Frauke Renz speculated in the National Interest's blog that Russia, Belarus, Brunei, Cambodia and Laos are compelled to take China’s side because of their political or economic interests due to Chinese hard power.[98]

One April 13 2016, a joint press release by Chinese Foreign Minister Wang Yi and Fijian Minister for Foreign Affairs Inoke Kubuabola was published. The press release says Fiji supported China’s proposition, both countries agree that for sovereignty and maritime rights, parties should be committed to peaceful settlement and optional exceptions of the Convention should be respected. [99] On the next day, Fijian government issued an statement saying the joint press release incorrectly depicted Fijian policy and the Fijian government does not support China's proposition[100]

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".[101] It also supported the Philippines move to take the issue to the Permanent Court of Arbitration.[102] However, on 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.[103] 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".[104]

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.[105][106]

Malaysia who has territorial claims in the South China Sea, as well as Singapore and Thailand sent observers to the proceedings.[107]

Australia has been mute regarding China's rejection to participate the arbitration since Australia has also rejected the the same procedures provided for in sections 2 of Part XV of the Convention. Australia emphasized that possible rulings of submissions such as No.3, No.4, No.6, and No.7 can affect many nations regarding maritime entitlements for maritime features. [108][109]

Multinational bodies

African Union

The Deputy Chairperson of the African Union supports China's position.[78]

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.[110]

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.[111] 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),".[112] The EU later stressed that China should respect the ruling from the Hague.[113]

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.[114] 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.[115]

NATO

Czech Army General Petr Pavel said that NATO advocates a “rules-based international system” and peaceful means for resolving discord. He added that "China is a signatory [to UNCLOS], and China should respect the norms,” General Pavel said. “If there’s any problem with the norms, they should raise it through the proper and established procedures, and not simply disrespect the norm and take unilateral action.”[116]

Nepal Workers and Peasants Party

Narayanman Bijukchhe, the party chairman, said that the South China Sea has been unnecessarily dragged in dispute by Western countries, primarily the U.S., to maintain its hegemonic exploitation over Asian countries. Bijukchhe called on countries in Asia to be on alert for conspiracies being hatched to arouse fight among the Asian countries. [117]

Shanghai Cooperation Organisation

In a statement of the Shanghai Cooperation Organisation 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.[118]

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.[119]

See also

References

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