South China Sea on the Rocks: The Philippines’ Arbitration Request

photo: This Philippine Navy vessel has been grounded
since 1999 to assert the nation's sovereignty over
the Second Thomas Shoal, a remote South China Sea
reef also claimed by China. The Philippines commenced
in 2013 arbitral proceedings against China to seek
declarations as to the legal status of, but not legal
title to, various land features in the South China
Sea. (Photo: AAP).

The overlapping territorial and maritime claims in the South China Sea are regularly described as flash points and sources of tension. A number of these overlapping claims do not involve China. However, it is the assertions made by China that lie at the heart of many of the disputes, as well as their possible resolution within the framework of UNCLOS.

The focus of most attention regarding the South China Sea resources has been on hydrocarbons in general, and oil in particular. Oil deposits have been found in the land territory of many of the states adjacent to the waters of the South China Sea. The South China Sea region has proven oil reserves and some existing oil production (largely involving Malaysia and the Philippines). Oil has also been discovered near Vietnam and near Hong Kong. However, geographic evidence suggests that the actual prospective areas are quite small, as most of the seabed lacks the essential characteristics to be seriously prospective.

China makes an ambiguous claim to the area of the South China Sea and the land masses within it. It remains very unclear whether China seeks to claim all of the waters of the South China Sea or whether China merely claims certain land territories within the area, with subsequent dependent maritime claims in the nature of territorial seas, exclusive economic zones (EEZs) and continental shelf claims.

China seems reluctant to articulate the precise legal basis for its claims. What is known is that it asserts historical title to certain island features. More significantly, it also asserts some unstated form of title to waters and land masses within what is described as the ‘nine-dash line’, which seeks to enclose the waters of the South China Sea.

The nine-dash line has been the subject of official protests by Vietnam, Malaysia, Brunei, Indonesia and the Philippines.

The Philippines commenced in 2013 arbitral proceedings against China under Article 287 of UNCLOS which allows for dispute settlement before, amongst other options, an arbitral tribunal constituted in accordance with Annex VII of UNCLOS.

The claim of the Philippines is carefully framed to seek declarations as to the legal status of, but not legal title to, various land features in the South China Sea. In particular, it seeks declarations that submerged features, or features incapable of maintaining human habitation, are not islands for the purposes of UNCLOS, and that as a result such features cannot be used to establish an EEZ.

More problematically, the Philippine claim also seeks a declaration that the nine-dash line is inconsistent with international law.

China has declined to participate in the process of arbitration at any level. However, if the Tribunal determines that it is capable of satisfying itself of jurisdiction to hear the matter, it can proceed in the absence of China.

The five-member Annex VII arbitral tribunal has been established as follows: Thomas Mensah, president (Ghana), Jean-Pierre Cot (France), Stanislaw Pawlak (Poland), Alfred Soons (The Netherlands) and Rüdiger Wolfrum (Germany).

The Philippines has provided full written submissions to the Tribunal on all questions, including the question of jurisdiction. The question of jurisdiction is critical, because China has made a formal Declaration, dated 25 August 2006, which invoked the opt-out clause of Article 298. The Declaration provides that China does not accept dispute settlement in relation to a number of categories, including most relevantly, ‘disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations’.

The Philippines’ claim is fairly carefully framed to avoid China’s reservation to questions of ‘sea boundary delimitation’. It does not directly seek the delimitation of any disputed area. Rather, the focus of the claim of the Philippines is upon the characterisation of the identified features as rocks or submerged features, and upon the legitimacy of the nine-dash line.

Of those matters, it seems likely that the Tribunal might consider that it has jurisdiction to determine the question of characterisation of the land features as rocks or islands since that seems to fall well outside the scope of the Chinese reservation.

Were the Tribunal to proceed to a determination of the status of the identified features, even in the face of determined non-participation by China, there would be much benefit for international law and the future resolution of issues in the area. Even if China refuses to accept the validity of any determination, the characterisation by a legitimate and responsible Tribunal of the status of the various maritime features would be a very helpful foundation upon which future tribunals and diplomacy could build.

Christopher Ward is a barrister at 12 Wentworth Selborne Chambers who practices in all areas of public international law, President of the Australian Branch of the International Law Association, and Fellow of the Centre for International and Public Law and the Centre for Military and Security Law, ANU.