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Home EJIL Analysis Philippines Initiates Arbitration Against China over South China Seas Dispute

Philippines Initiates Arbitration Against China over South China Seas Dispute

Published on January 22, 2013        Author: 

Today, the Philippines has initiated arbitral proceedings against China with regard to China’s claims over much of the South China seas. Those Chinese claims have led to serious disputes between China and several of its neighbours in East Asia with those disputes intensifying recently. Both the Philippines and China are parties to the United Nations Convention on the Law of the Sea and Part XV of that treaty provides for compulsory arbitral/judicial jurisdiction over disputes arising under that Convention. As is well known, UNCLOS Part XV provides for a choice of procedure and States parties may choose either the International Tribunal for the Law of the Sea (ITLOS); the International Court of Justice (ICJ); or an arbitral tribunal as their preferred means for compulsory settlement. In the absence of a choice, arbitration is the default mode of settlement. Also, where the disputing parties have not chosen the same means, the dispute shall be referred to arbitration under annex VII of the Convention (See Art. 287, paras. 1, 3 & 5). As neither the Philippines nor China has made a choice of tribunal, the Philippines has referred this dispute to arbitration. The Philippines notification of the proceedings and its statement of claim can be found here.

Although UNCLOS provides for compulsory jurisdiction over most matters arising under the Convention,  Art. 298 provides that a State may at any time declare that it does not accept compulsory jurisdiction over certain specified categories of disputes. In particular, a State may exclude compulsory jurisdiction with respect to “disputes concerning the interpretation or application of  articles 15, 74 and 83 relating to sea boundary delimitations, or those  involving historic bays or titles”.  China did precisely this in 2006. So, the first thing the Philippines would need to do would be to persuade the arbitral tribunal that it has jurisdiction over the case. To do that it would need to show that the dispute it has submitted to the arbitral tribunal falls outside China’s exclusion of jurisdiction under Art. 298(1)(a). This may not be so easy.

In its statement of statement of claim and a statement by the Philippines Foreign Minister, the Philippines tries to show that its claim  is not one relating to boundary delimitations. In statement of claim:

“the Philippines seeks an Award that: (1) declares that the Parties’ respective rights and obligations in regard to the waters, sewed and maritime features of the South China Sea are governed by UNCLOS, and that China’s claims based on its “nine dash line” are inconsistent with the Convention and therefore invalid; (2) determines whether, under Article 121 of UNCLOS, certain of the maritime features claimed by both China and the Philippines are islands, low tide elevations or submerged banks, and whether they are capable of generating entitlement to maritime zones greater than 12 M; and (3) enables the Philippines to exercise and enjoy the rights within and beyond its exclusive economic zone and continental shelf that are established_ in the Convention.”

Those claims are expanded on in the final couple of pages of the Philippine’s statement of claim which deal with the relief sought. What is sought includes a series of declarations, including: declarations that certain maritime features (those referred to in in (2) above) are part of the continental shelf of the Philippines and not part of, or located within, the continental shelf of China; that China has unlawfully claimed and unlawfully exploited the resources of Philippines’ continental shelf and EEZ; and that China has unlawfuly interfered with Philippines rights of navigation within and and beyond 200 miles of the Philippine’s archipelagic baseline.

The Philippines has carefully avoided asking the tribunal to draw a line delimiting the boundaries of its maritime zones and those that belong to China. However, most of its claims would seem to require the tribunal to determine whether particular features or areas are within the maritime zones of the Philippines or those of China. Is that covered by an exclusion of jurisdiction over boundary delimitation?  To accept the jurisdiction, the tribunal it would seem that the tribunal has to walk a fine line. It might say particular features are (or are not) islands or rocks which generate no or limited maritime entitlements. However, can the tribunal then go on to say which State has those limited entitlements? In short, is any determination that a particular area is part of the maritime zones of a particular State an aspect of delimitation? Or is delimitation strictly about drawing lines to divide the maritime zones? Readers any thoughts on this?

As an aside, although China has not been an active participant in international tribunals, over the past few years it has been more active in proceedings before international tribunals. It has been involved in very recent advisory proceedings both before ITLOS and the ICJ (see this previous post of mine  and this post and piece by Julian Ku). However, to my knowledge this would be the first contentious inter-State case involving China, since the communist revolution in China.

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