How Philippines' Territorial Arbitration Case against China Defeated a Bully

(Note: all statements are direct quotes from the Arbitral rulings themselves.)

Philippines v. China (PCA?case number 2013–19), also known as the?South China Sea Arbitration?was an arbitration case brought by the?Philippines?against China under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS, ratified by the Philippines in 1984 and by the PRC in 1996) concerning certain issues in the South China Sea, including the nine-dash line?introduced by the China?since as early as 1947.

On 19 February 2013, China declared that it would not participate in the arbitration.?On 7 December 2014, a white paper?was published by China to elaborate its position.?On 29 October 2015, the arbitral tribunal ruled that it has jurisdiction over the case,?taking up seven of the 15 submissions made by the Philippines.

On 12 July 2016, (almost 5 years to this day) the special arbitral tribunal ruled in favor of the Philippines on most of its submissions. It clarified that it would not "... rule on any question of sovereignty over land territory and would not delimit any maritime boundary between the Parties".?The tribunal also concluded that China's historic rights claims over the maritime areas (as opposed to land territories and territorial waters) inside the "nine-dash line" have no lawful effect if they exceed what's entitled to under UNCLOS.

The Philippines contended that the "nine-dotted line" claim by China is invalid because it violates the UNCLOS agreements about exclusive economic zones?and terrirorial 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.

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, among others:

• 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 The Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.
• 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.
• 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.
• 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.
• 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 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.
• 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.

These and many more breaches against generally accepted international laws, portrays a different China in the eyes of the law abiding nations of the world than what its leaders are saying today.

CHINESE ACTIVITIES IN THE SOUTH CHINA SEA

The tribunal also ruled on the legality of activities of Chinese officials and Chinese vessels in the areas of the South China Sea located within the Philippines’ EEZ and CS. It concluded that China breached the provisions of UNCLOS, in particular by (a) temporarily prohibiting fishing in areas of the South China Sea falling within the Philippines’ EEZ, (b) failing to prevent Chinese vessels from fishing in the Philippines’ EEZ at Mischief Reef and Second Thomas Shoal and (c) preventing Filipino fishermen from engaging in traditional fishing at Scarborough Shoal. Regarding China’s construction of artificial islands, installations and structures at Mischief Reef – a LTE which is part of the Philippines’ EEZ and CS – without the authorisation of the Philippines, the tribunal also found China to have violated UNCLOS. (Graduate Institute of Geneva, Global Challenges, Issue # 1, Feb. 2017).

# SouthChinaSea #UNCLOS # maritimelaws # occupation # PhilippineEEZ # fishingrights # territorialrights #sovereignty # illegalfishing