Philippines v. China

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 8 September 1951, it did not indicate successor states 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, reitirating China's sovereignty over the archipelagos in the South China Sea, including the Spratly 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 May 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 for himself and later requested to make the territory a protectorate of the Philippines. Tomas Cloma even stole China (ROC)'s national flag from the Taiping Island. In July 1956, he apologized officially for his act and he surrendered the flag he stole to China's embassy in Manila. On 2 October 1956, he wrote a letter and ensured he would not make further training voyages or landings in the territorial waters of China (ROC).

Philippine troops were sent to three of the islands in 1968, when the Philippines were under President Ferdinand Marcos. In the 1970s, some countries began to invade and occupy islands and reefs in the Spratlys. The Spratlys were placed under the jurisdiction of the province of Palawan in 1978.

The People's Republic of China (PRC) 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.

Optional exceptions to applicability of compulsory procedure

Article 298 of Section 3 of Part XV of the Convention provides optional exceptions to applicability of compulsory procedures provided in Section 2. 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.

Participants

The arbitration involved the Philippines and China.

Philippine stance

The Philippines contended 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 refused 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 PCA tribunal from proceeding with the case. After the award ruling, the PRC issued a statement rejecting it as 'null' and having decided not to abide by the arbitral tribunal's decision, said it will "ignore the ruling".

Taiwanese stance

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

Vietnamese stance

On 11 December 2014, Vietnam filed a statement to the tribunal which put forward three points: 1) Vietnam supports the filing of this case by the Philippines, 2) it rejects China's "nine-dashed line", and 3) it asks the PCA tribunal to take note of Vietnam's claims on certain islands such as the Paracels.

Other stances

Brunei sent its own UNCLOS claim through a preliminary submission prior to the arbitration. 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 the Malaysian claim 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 the Chinese claim invalid. The Philippines echoed Indonesia's claims, further stating that the islands belong to them through geographic proximity.

Hearings

On 7 July 2015, case hearings began with the Philippines asking the tribunal 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 PCA tribunal 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 24 to 30 November 2015.

Award on Jurisdiction and Admissibility

On 29 October 2015, the PCA published the award by the tribunal on Jurisdiction and Admissibility for the case. The tribunal found that it has jurisdiction to consider the following seven Philippines’ Submissions. (Each number is the Philippines’ Submissions number.) The tribunal reserved consideration of its jurisdiction to rule on Nos. 1, 2, 5, 8, 9, 12, and 14.

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 are continuing disputes in all of the 15 submissions from the Philippines, but for submissions such as No.3, No.4, No.6 and No.7, no known claims from the Philippines prior to the initiation of this arbitration exist, and that China was not aware of (nor had previously opposed) such claims prior to the initiation of arbitration. The Chinese Society of International Law (CSIL) has stated that the tribunal was trying to hide its incapability to prove that maritime entitlements of the nine features constitute the essence of the disputes.

For Submissions No.8 to No.14, the tribunal held the view that the lawfulness of China's maritime activities in the South China Sea is not related to sovereignty. CSIL has asserted that the disagreements do concern territorial sovereignty, and constitute no dispute with respect to the claims advanced by the Philippines.

Award

On 12 July 2016, the Permanent Court of Arbitration published an arbitration award by the tribunal which it states is final and binding as set out in the Convention. Conclusions expressed in the award included the following:

Regarding the "Nine-Dash Line" and China's claim in the maritime areas of the South China Sea

The [UNCLOS] Convention defines the scope of maritime entitlements in the South China Sea, which may not extend beyond the limits imposed therein.

China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention. The Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.

Regarding the status of features as above/below water at high tide (Submissions no. 4 and 6)

High-tide features: (a) Scarborough Shoal, (b) Cuarteron Reef, (c) Fiery Cross Reef, (d) Johnson Reef, (e) McKennan Reef, and (f) Gaven Reef (North).

Low-tide elevations: (a) Hughes Reef, (b) Gaven Reef (South), (c) Subi Reef, (d) Mischief Reef, (e) Second Thomas Shoal.

Hughes Reef lies within 12 nautical miles of the high-tide features on McKennan Reef and Sin Cowe Island, Gaven Reef (South) lies within 12 nautical miles of the high-tide features at Gaven Reef (North) and Namyit Island, and that Subi Reef lies within 12 nautical miles of the high-tide feature of Sandy Cay on the reefs to the west of Thitu.

Regarding the status of features as rocks/islands (Submissions no. 3, 5, and 7)

Scarborough Shoal contains, within the meaning of Article 121(1) of the Convention, naturally formed areas of land, surrounded by water, which are above water at high tide. However, under Article 121(3) of the Convention, the high-tide features at Scarborough Shoal are rocks that cannot sustain human habitation or economic life of their own and accordingly shall have no exclusive economic zone or continental shelf.

Johnson Reef, Cuarteron Reef, and Fiery Cross Reef contain, within the meaning of Article 121(1) of the Convention, naturally formed areas of land, surrounded by water, which are above water at high tide. However, for purposes of Article 121(3) of the Convention, the high-tide features at Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are rocks that cannot sustain human habitation or economic life of their own and accordingly shall have no exclusive economic zone or continental shelf.

The high-tide features at Gaven Reef (North) and McKennan Reef are rocks that cannot sustain human habitation or economic life of their own and accordingly shall have no exclusive economic zone or continental shelf.

Mischief Reef and Second Thomas Shoal are both low-tide elevations that generate no maritime zones of their own [and] that none of the high-tide features in the Spratly Islands are capable of sustaining human habitation or an economic life of their own within the meaning of those terms in Article 121(3) of the Convention. All of the high-tide features in the Spratly Islands are therefore legally rocks for purposes of Article 121(3) and do not generate entitlements to an exclusive economic zone or continental shelf. There is, accordingly, no possible entitlement by China to any maritime zone in the area of either Mischief Reef or Second Thomas Shoal and no jurisdictional obstacle to the tribunal’s consideration of the Philippines’ Submission No. 5.

Both Mischief Reef and Second Thomas Shoal are located within 200 nautical miles of the Philippines’ coast on the island of Palawan and are located in an area that is not overlapped by the entitlements generated by any maritime feature claimed by China. It follows, therefore, that, as between the Philippines and China, Mischief Reef and Second Thomas Shoal form part of the exclusive economic zone and continental shelf of the Philippines.

Regarding alleged interference with the Philippines' sovereign rights in its EEZ and continental shelf (Submission no. 8)

China has, through the operation of its marine surveillance vessels with respect to M/V Veritas Voyager on 1 to 2 March 2011 breached Article 77 of the Convention with respect to the Philippines’ sovereign rights over the non-living resources of its continental shelf in the area of Reed Bank [and] that China has, by promulgating its 2012 moratorium on fishing in the South China Sea, without exception for areas of the South China Sea falling within the exclusive economic zone of the Philippines and without limiting the moratorium to Chinese flagged vessels, breached Article 56 of the Convention with respect to the Philippines’ sovereign rights over the living resources of its exclusive economic zone.

Regarding alleged failure to prevent Chinese nationals from exploiting the Philippines' living resources (Submission no. 9)

China has, through the operation of its marine surveillance vessels in tolerating and failing to exercise due diligence to prevent fishing by Chinese flagged vessels at Mischief Reef and Second Thomas Shoal in May 2013, failed to exhibit due regard for the Philippines’ sovereign rights with respect to fisheries in its exclusive economic zone. Accordingly, China has breached its obligations under Article 58(3) of the Convention.

Regarding China's actions in respect of traditional fishing at Scarborough Shoal (Submission no. 10)

China has, through the operation of its official vessels at Scarborough Shoal from May 2012 onwards, unlawfully prevented Filipino fishermen from engaging in traditional fishing at Scarborough Shoal.

Regarding alleged failure to protect and preserve )the marine environment (Submissions no. 11 and 12(B))

China has, through its toleration and protection of, and failure to prevent Chinese fishing vessels engaging in harmful harvesting activities of endangered species at Scarborough Shoal, Second Thomas Shoal and other features in the Spratly Islands, breached Articles 192 and 194(5) of the Convention.

China has, through its island-building activities at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef and Mischief Reef, breached Articles 192, 194(1), 194(5), 197, 123, and 206 of the Convention.

Regarding occupation and construction activities on Mischief Reef (Submission no. 12)

China has, through its construction of installations and artificial islands at Mischief Reef without the authorisation of the Philippines, breached Articles 60 and 80 of the Convention with respect to the Philippines’ sovereign rights in its exclusive economic zone and continental shelf [and], as a low-tide elevation, Mischief Reef is not capable of appropriation.

Regarding operation of law enforcement vessels in a dangerous manner (Submission no. 13)

China has, by virtue of the conduct of Chinese law enforcement vessels in the vicinity of Scarborough Shoal, created serious risk of collision and danger to Philippine vessels and personnel. The Tribunal finds China to have violated Rules 2, 6, 7, 8, 15, and 16 of the COLREGS and, as a consequence, to be in breach of Article 94 of the Convention.

Regarding aggravation or extension of the dispute between the parties (Submission No. 14)

China has in the course of these proceedings aggravated and extended the disputes between the Parties through its dredging, artificial island-building, and construction activities [in several particulars itemized in the award].

Regarding the future conduct of the parties (Submission no. 15)

Both Parties are obliged to comply with the Convention, including its provisions regarding the resolution of disputes, and to respect the rights and freedoms of other States under the Convention. Neither Party contests this.

Timeline

22 January 2013 – Philippines served China with notification and Statement of Claim

19 February 2013 – China rejected the Philippines’ Notification

11 July 2013 – First meeting of the arbitral tribunal at The Hague

31 July 2013 – Philippines commented on draft Rules of Procedure for the Tribunal

1 August 2013 – China indicated that “it does not accept the arbitration initiated by the Philippines”

27 August 2013 – Procedural Order No 1 issued via PCA Press Release on behalf of the arbitral tribunal

30 March 2014 – Submission of the Philippines Memorial

14–15 May 2014 – Second meeting of the arbitral tribunal at The Hague

21 May 2014 – China comments on draft Procedural Order No 2 and observes that “it does not accept the arbitration initiated by the Philippines”.

29 May 2014 – Philippines comments on draft Procedural Order No 2

3 June 2014 – Procedural Order No 2 issued via PCA Press Release on behalf of the arbitral tribunal

15 December 2014 – China had not filed a Counter-Memorial

17 December 2014 – Procedural Order No 3 issued via PCA Press Release on behalf of the arbitral tribunal

16 March 2015 – The Philippines made a Supplemental Written Submission to the Arbitral Tribunal

20–21 April 2015 – Third meeting of the arbitral tribunal at The Hague

22 April 2015 – Procedural Order No 4 issued via PCA Press Release on behalf of the arbitral tribunal

7–13 July 2015 – Hearing of the arbitral tribunal at The Hague

29 October 2015 – PCA issued the Award on jurisdiction and admissibility

12 July 2016 - The tribunal of PCA gave a verdict claiming that China has no legal basis or historic claim on the Nine-dash line. China rejected the ruling.

Before the ruling

There are countries and multinational bodies that have 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 and support for Philippines' stance

Opposition to the arbitration / Support for bilateral talks between the disputants / Support for China's stance

In May 2016, Chinese Foreign Ministry spokeswoman Hua Chunying said that there were more than 40 countries that had expressed their support for China's position. In June 2016, it was reported that nearly 60 countries supported China's position. In July 2016, it was reported that more than 70 countries expressed their support for China's position. China stressed that 7 or 8 countries cannot represent international society.

One 13 April 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. On the next day, Fijian government issued a statement saying the joint press release incorrectly depicted Fijian policy and the Fijian government does not support China's proposition.

In August 2015, a junior Minister of State of India, V K Singh, told that territorial disputes should be resolved through peaceful means as was done by India and Bangladesh using the mechanisms provided by the UNCLOS, and parties should abide by the Declaration of the Conduct of Parties in the South China Sea. In October 2015, the Foreign Minister of India Sushma Swaraj stated in a joint statement that India supports a peaceful settlement of the dispute. Peaceful means should be used according to the principles of international law, including the UNCLOS. In April 2016, Foreign Minister Sushma Swaraj stated in a communique that Russia, India and China agreed to maintain legal order of seas based on international law, including the UNCLOS, and all related disputes should be addressed through negotiations and agreements between the parties concerned.

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. The Asahi Shimbun reports that the United States has made an unofficial request to South Korea to express its position on the arbitration case before the ruling but South Korea reportedly turned down the request saying its difficult make a position prior to the ruling.

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

Australia has not sought to take a public position on the matter other than to state that the ruling of the tribunal should be respected. However Australia has recognized the right of the Philippines to seek arbitration.

The foreign secretary of New Zealand stated in a speech that New Zealand supports the right to seek arbitration on South China Sea disputes.

ASEAN

In June 2016, before the tribunal issued its ruling, Malaysia's foreign ministry released what it said was a joint statement of ASEAN expressing "serious concern" over land reclamation activities in the South China Sea. Within hours of issuing the statement, Malaysia announced that ASEAN wanted the statement retracted for "urgent amendments". Malaysian Foreign Ministry's Secretary General Othman Hashim later claimed that ASEAN's foreign ministers had "unanimously agreed" to the statement at a meeting, and that "Subsequent developments pertaining to the media statement took place after the departure of the ASEAN foreign ministers".

Cambodian Prime Minister Hun Sen later gave a speech condemning reports that Cambodia had had the statement retracted in order to please China, saying, "Cambodia will not be a puppet of anyone on the South China Sea issue." Hun Sen suggested the case was a "political conspiracy" and that the ruling "will not be fair", but also said that "Cambodia will just choose to stay neutral on this issue." A few days after Hun Sen's speech, the Cambodian People's Party, which Hun Sen heads, issued a statement backing him. According to the statement, “The CPP would like to reject unjust allegations that Cambodia has destroyed the issuing of a joint statement from Asean on the issue of the South China Sea both in Kunming recently and in 2012.”

On 9 July, shortly before the tribunal issued its verdict, Cambodia's foreign ministry issued a statement reiterating that Cambodia would not join any ASEAN statement on the verdict.

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),". The EU later stressed that China should respect the ruling from the Hague.

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.

North Atlantic Treaty Organization

NATO General Petr Pavel said NATO has "no legal platform" to intervene militarily in the South China Sea territorial disputes, and NATO will not interfere in other region's issues. NATO supports any regional solutions based on political and diplomatic negotiations, “rules-based international system” and peaceful means for resolving discord.

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.

National governments

 Australia: On 15 July 2016, Australian Minister for Defence, Marise Payne, and Minister for Foreign Affairs, Julie Bishop, stated that they regard the ruling "as final, and as binding", and urged all parties involved in the dispute to "abide by the ruling." The ministers also further described the court's ruling as "consistent" with the Australia's position on the matter.

 India: On 12 July 2016, Indian ministry of external affairs stated that the country supports freedom of navigation, and urged all parties to demonstrate an utmost respect for the UNCLOS.

 Indonesia: On 13 July 2016, Indonesia called on all parties involved in the territorial dispute to exercise self-restraint and to respect applicable international laws.

 Japan: On 16 July 2016, Japan stated that the arbitration court's ruling "is legally binding and must be respected by all parties," thus urged Beijing to respect and comply the ruling.

 Malaysia: On 13 July 2016, Malaysia called for parties involved to exercise self-restraint to avoid escalating tension. The country Foreign Ministry said in a statement that "It is important to maintain peace, security and stability through the exercise of self-restraint in the conduct of activities that may further complicate disputes or escalate tension and avoid the threat or use of force in the South China Sea".

 Singapore: On 12 July 2016, Singapore urged that all parties involved in the South China Sea dispute to respect the legal and diplomatic processes.

 South Korea: On 13 July 2016, South Korea stated that the country supports freedom of navigation and overflight in South China Sea, and support the peaceful means in resolving dispute according to international law.

 Vietnam: On 12 July 2016, Vietnam immediately welcomed the arbitration tribunal ruling, thus announced that the country supports peace and order, also freedom of navigation and overflight in the region.

United Nations

The United Nations says it has no position regarding either legal merits or procedural merits of the case. The UN's International Court of Justice says it has no involvement in the case either.

ASEAN

On 25 July 2016, in Vientiane, Laos, ASEAN issued the joint statement regarding the South China Sea disputeː ensure and promote the peace, stability, and security in the region.