Philippines v. China

Philippines v. China (PCA case number 2013–19), also known as the South China Sea Arbitration, was an arbitration case brought by the Republic of the Philippines against the People's Republic of China (PRC) 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 Republic of China (Taiwan) 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, the special arbitral tribunal ruled in favor of the Philippines on most of her 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. China has rejected the ruling, as has Taiwan.
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, reiterating 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 apologised 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 occupy islands and reefs in the Spratlys. The Spratlys were placed under the jurisdiction of the province of Palawan in 1978.
The 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 the applicability of compulsory procedures provided in Section 2. China made a declaration in 2006 in accordance with this provision of the Convention purporting 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 had 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. However, the Tribunal held that this dispute did not fall within the exceptions provided in Article 298, and was therefore admissible.
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 did 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".
Claimants of the South China Sea.
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, Ma Ying-jeou, President of the Republic of China (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.
Arbitration.
The tribunal convened a Hearing on Jurisdiction and Admissibility on 7 to 13 July 2015, rendered an Award on Jurisdiction and Admissibility on 29 October 2015, convened a hearing on the merits from 24 to 30 November 2015, and issued an inanimous award on 12 July 2016.
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.
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. 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.
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:
International reactions.
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.
ASEAN.
Malaysia and Vietnam, who have territorial claims in the South China Sea, as well as Australia, Indonesia, Japan, Singapore and Thailand sent observers to the proceedings.
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.
Australia.
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 recognised the right of the Philippines to seek arbitration.
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.
India.
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.
New Zealand.
The foreign secretary of New Zealand stated in a speech that New Zealand supports the right to seek arbitration on South China Sea disputes.
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.
People's Republic of China.
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.
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 internationalise the dispute.
South Korea.
During the 2015 East Asia Summit, South Korea's 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.
After the ruling.
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.
The 36th ASEAN Summit was held virtually on 26 June 2020. Vietnam, as the Chairman of the Summit, released the Chairman's Statement. The Statement said the United Nations Convention on the Law of the Sea is “the basis for determining maritime entitlements, sovereign rights, jurisdiction and legitimate interests over maritime zones, and the 1982 UNCLOS sets out the legal framework within which all activities in the oceans and seas must be carried out.”
Other reactions.
The ruling was followed on 29 July by derogatory messages against the Philippines and Vietnam posted on Vietnamese computer systems by self-proclaimed Chinese hackers.
In August 2016 hackers linked to the Chinese government infiltrated and extracted confidential information from the Philippines' Department of Justice and the international legal firm which had represented the Philippines at the Hague. Related attacks also occurred in July 2016.
The Asia correspondent of "The Globe and Mail" feels that the Philippines have not enforced the international court judgment over the South China Sea because of massive investment and aid from China into the Philippines after the judgment was released. It was remarked by Justin Trudeau in a 2019 election leadership debate that the pacification was accomplished through the Chinese-led Asian Infrastructure Investment Bank.
On 22 September 2020, in UN Speech, the Philippine President, Rodrigo Duterte reaffirmed the Hague ruling rejecting most of China's claims to disputed waters, and said “The award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish, or abandon.” 