On January 22, 2013, the Philippines, as a member of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), filed a lawsuit against China to the Arbitral Tribunal, constituted under Annex VII to the UNCLOS. According to the lawsuit, China’s claims and activities in the South China Sea are contrary to international law. Specifically, the Philippines side claimed that China had made erroneous explanations and applications of Articles 279, 283, and 284 of the UNCLOS.
Peaceful settlement of disputes through dialogues and legal means is widely supported by the international community. The Philippines's move is viewed as an optimal and legitimate solution complying with international norms after the country failed to settle the dispute with China through peaceful bilateral talks. At their recent summit in Japan, leaders of G7 countries adopted a declaration, which reiterated their commitment to maintaining a rule-based maritime order in accordance with the principles of international law as reflected in UNCLOS, to peaceful dispute settlement supported by confidence building measures and including through legal means.
The ASEAN member states have also emphasized the importance of international law and the use of peaceful means in dispute settlement. In the joint Statement on the Current Developments in the South China Sea in 2014, ASEAN Foreign Ministers urged all parties concerned, in accordance with the universally recognized principles of international law, including UNCLOS, to exercise self-restraint and to resolve disputes by peaceful means without resorting to threat or use of force. In the Press Statement by the Chairman of the ASEAN Foreign Ministers’ Retreat in Vientiane, Laos this February, the Ministers again reaffirmed their shared commitment to the peaceful resolution of disputes, including full respect for legal and diplomatic processes, without resorting to the threat or use of force, in accordance with the universally recognised principles of international law, including the UNCLOS.
As a member of the UNCLOS, China, however, has refused to participate in the arbitration. According to China, the Philippine lawsuit is out of the jurisdiction of the Arbitral Tribunal because it petitioned about the enjoyment and exercise of sovereign rights and the delimitation of sea boundaries, which are exceptions reserved as declared by China. China also states that the Philippine lawsuit is a violation of the Declaration on the Conduct of Parties in the South China Sea in 2002, which stipulated bilateral negotiations as the means of resolving border and other disputes.
Recently, China launched a "campaign" to deter the tribunal's ruling and seek support from other countries. However, although China claims it already receives support by 60 countries, the Center for Strategic and International Studies based in Washington says that only eight governments have declared their backing in public. The remaining majority of countries have declared their support for the use of peaceful measures to deal with the dispute in compliance with international law. So, the widespread support for China's stance on settling the dispute bilaterally and the Philippine lawsuit is merely created by Chinese media.
It is also important to note that while voicing their opposition to the Philippine lawsuit and incoming Tribunal’s judgment, China continues to accelerate reclamation activities in the South China Sea. According to a Pentagon report, China has reclaimed more than 3,200 acres of land in the south-eastern South China Sea and is now shifting focus on developing and weaponizing those man-made islands. It is reported that China already deployed aircraft missiles to Woody Island in the Paracel Islands.
Award on Jurisdiction and Admissibility
Despite China's opposition and argument, on 20 October 2015, the Permanent Court of Arbitration (PCA) at The Hague awarded its first decision in the Philippine lawsuit. The court ruled that the case was “properly constituted” under the United Nations Convention on the Law of the Sea, that China’s “non-appearance” did not preclude the Court’s jurisdiction, and that the Philippines was within its rights in filing the case as its lawsuit reflected the dispute between the two countries pertaining to explanation and application of the UNCLOS. Thus, this decision means that the PCA rules in the Philippines’ favor on the question of jurisdiction.
Besides China, Taiwan has recently made efforts to intervene and influence the Tribunal's judgment. Taiwan has announced it stance on the South China Sea issue, submitted a consultancy paper to the court, and requested that an island called Taiping is granted with a 200-nautical mile exclusive economic zone. However, Taiwan 'petition' is legally null and void given Taiwan is neither a member of the UN nor the UNCLOS. Taiwan does not represent the defendant and its petitioned issue had not been raised by the Philippines in its lawsuit though the name of Taiping was mentioned at hearings. Thus, although the Tribunal may need some more time to review Taiwan’s petition in accordance with court procedures, this petition is likely to have no impact on the final judgment.
Fair ruling awaited
It is expected that the final ruling on the Philippine lawsuit is made as early as July. Although there are speculations that the ruling may not fully cover all submissions explored by the arbitration, its major contents are expected to deal with the followings:
First, China's 'nine-dotted line' claim. Experts say that the court could declare this claim, which is grounded on a "historic rights", is void as it does not comply with the UNCLOS.
Second, China’s man-made islands. It is widely expected the court will rule that many of those entities have no claim on the surrounding water while some may be considered as rocks which have a 12 nautical mile territorial sea.
Third, China's violation of the UNCLOS when preventing the Philippines from exercising its sovereign right and jurisdiction in its sea area as mandated by the UNCLOS.
If the Tribunal's judgment deals with the above issues in a comprehensive and clear manner and in conformity with UNCLOS regulations, it will meet expectation of the international community as it highlights the importance of international law and peaceful dispute settlement. No matter how big or powerful, all countries have to abide by international law with a view to safeguarding peace, stability and foster cooperation at regional and global level./
Kim, hyun jae
Professor, Dept of ASEAN Business
Director of Vietnam Research Institute