Thayer South China Sea: China Rejects Arbitration Claim by the Philippines

7/29/2019 Thayer South China Sea: China Rejects Arbitration Claim by the Philippines

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USNINews

United States Naval Institute News

China at Odds with U.N. Treaty

By: Carlyle A. ThayerMonday, March 11, 2013

China is rejecting the U.N. Law of the Sea treaty. Xinhua Photo

On Jan. 22, Ma Keqing, the Chinese ambassador to the Philippines, wassummoned to the Department of Foreign Affairs in Manila and handed a noteverbale informing her that the Philippines was initiating a legal challenge to bringChina before an arbitral ribunal under the terms of the U.N. Convention on Lawof the Sea (UNCLOS).

The note verbale contained the official text of the Notification and Statement ofClaim submitted to the United Nations by the Philippines. That document outlinedthe Philippine challenge to the validity of Chinas claims to the South China Sea.The Philippines also called on China to desist from unlawful activities that violatethe sovereign rights and jurisdiction of the Philippines. Under UNCLOS, Chinahad 30 days to respond by notifying its nominee to the arbitral tribunal.

On 19 February, Ambassador Ma met with officials at the Department of ForeignAffairs and returned the Philippines Notification and Statement of Claim, thus


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rejecting it. A Chinese Foreign Ministry spokesman in Beijing said the PhilippinesStatement of Claim was historically and legally incorrect and containedunacceptable accusations against China.

UNCLOS and Binding Arbitration

Under UNCLOS Article 287, a state is free to choose one or more of four bindingarbitration measures: International Tribunal for the Law of the Sea (ITLOS),International Court of Justice, arbitral tribunal, or a special arbitral tribunal. Ifparties to a dispute failed to issue a formal declaration specifying their choice ofarbitration, under UNCLOS Article 287(3) they shall be deemed to haveaccepted arbitration in accordance with Annex VII. Because neither China northe Philippines ever issued a formal declaration specifying their choice, theirdispute became subject to arbitration by an arbitral tribunal.

Every state that ratifies UNCLOS is entitled to nominate four arbitrators to a listmaintained by the U.N. Secretary General. An arbitral tribunal is generallycomposed of five people drawn from that list. Each party to a dispute is entitled to

make one nomination and to jointly agree on the other three members, includingthe chairman.

Annex VII makes provisions for cases when a state fails to nominate its arbitratorwithin the 30-day period. After Chinas rejection, the Philippines has two weeks torequest that the president of ITLOS to make the necessary appointments ofarbitrators from the approved list. The president has 30 days to make thenecessary appointments.

When the arbitral tribunal is set up it determines its own procedures. Decisionsare made by majority vote. The tribunal may hear the claim made by thePhilippines even if China refuses to take part. Under Annex VII, Article 9: If one

of the parties to the dispute does not appear before the arbitral tribunal or fails todefend its case, the other party may request the tribunal to continue theproceedings and to make its award. Absence of a party or failure of a party todefend its case shall not constitute a bar to the proceedings. Before making itsaward, the arbitral tribunal must satisfy itself not only that it has jurisdiction overthe dispute but also that the claim is well founded in fact and law.

The arbitral tribunal is required to confine its award to the subject-matter of thedispute and the award shall be final and without appeal. . . . It shall be compliedwith by the parties to the dispute. UNCLOS, however, does not contain anyprovisions for enforcement.

The Philippines Case

UNCLOS Part XV requires states to settle their disputes by peaceful means andto exchange views toward that end. The Philippines argues that it has continuallyexchanged views with China since 1995, when China occupied Mischief Reef.The Philippines Statement of Claim concludes, over the past 17 years of suchexchanges of views, all possibilities of a negotiated settlement have beenexplored and exhausted.

In August 2006, China made a declaration of optional exceptions exempting itself


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from compulsory dispute procedures related to sea boundary delimitation(territorial sea, exclusive economic zone (EEZ) and continental shelf), militaryand law enforcement activities, and disputes involving the U.N. Security Councilexercising its functions under the U.N. Charter. The Philippines was careful in itsNotification and Statement of Claim to say it was not seeking arbitration over

sovereignty disputes to islands or delimitation of maritime boundaries that Chinahad excluded from arbitral jurisdiction. The Philippines claimed that its maritimedisputes with China were about the interpretation and application by StatesParties of their obligations under the UNCLOS, and therefore could be submittedfor resolution.

What awards are the Philippines seeking from the arbitral tribunal? First, thePhilippines sought an award that declared that the maritime areas claimed byChina and the Philippines in the South China Sea are those established byUNCLOS and consisted of territorial sea, contiguous zone, EEZ, and continentalshelf. On that basis, the Philippines requested the arbitral tribunal declare thatChinas claims to the South China Sea were inconsistent with UNCLOS and

invalid. Further, the Philippines requested that the arbitral tribunal require Chinato bring its domestic legislation into conformity with UNCLOS.

Second, the Philippines requested the arbitral tribunal to determine the legalstatus of features (islands, low-tide elevations and submerged banks) in theSouth China Sea claimed by China and the Philippines and whether thesefeatures were capable of generating an entitlement of a maritime zone greaterthan 12 nautical miles. The Philippines specifically listed Mischief Reef,McKennan Reef, Gaven Reef, Subi Reef, Johnson Reef, Cuarteron Reef, andFiery Cross Reef and argued China claimed excessive maritime zones on thebasis that these features were islands. The Philippines claimed these featureswere submerged banks, reefs and low tide elevations that do not qualify asislands under UNCLOS, but are parts of the Philippines continental shelf, or theinternational seabed. Under UNCLOS islands are entitled to a 200-nautical-mileEEZ and rocks to a 12-nm territorial sea.

Third, the Philippines argued that China interfered with the lawful exercise of thePhilippines rights within and beyond its EEZ and continental shelf incontravention of UNCLOS. The Philippines requested the arbitral tribunal requireChina to desist from (1) its occupation of and activities on the features listedabove, (2) interfering with Philippines vessels exploiting the living resources inwaters adjacent to Scarborough Shoal and Johnson Reef, (3) exploiting the livingand non-living resources within the Philippines EEZ and continental shelf, and

(4) interfering in the Philippines freedom of navigation within and beyond the200 nautical miles of the Philippines baselines.

Implications

If the arbitral tribunal accepts the Philippines Statement of Claim and rules in itsfavor, that would undermine Chinas claim to indisputable sovereignty over theSouth China Sea. All other claimant statesVietnam, Malaysia, and Bruneiwould benefit from such an award. There is some risk, however. The Arbitral


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Tribunal could deliver a mixed award that favored the Philippines in some casesbut which also entrenches Chinas presence in others. A mixed award wouldaffect the claims advanced by other littoral states, especially related to the legalstatus of the features that they occupy.

According to Philippine officials it could take up to three or four years for the

arbitral tribunal to reach a decision. During that time China could furtherconsolidate and expand its presence in waters claimed by the Philippines.

It remains an open question as to what impact the Philippines legal claim willhave on the Association of Southeast Asian Nations and its efforts to implementconfidence-building measures with China under the Declaration of Conduct ofParties in the South China Sea, and negotiate a legally binding Code of Conductin the South China Sea.

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Thayer South China Sea: China Rejects Arbitration Claim by the Philippines