Earl B. Dalmaceda | January 26, 2016
With Asia becoming the focal point of political and economic transformation in the world, one of the most disputed areas has been in the South China Sea (SCS). This article focuses on the dispute between the Republic of the Philippines and the People’s Republic of China over their claims of the Spratly Islands, particularly the Philippines’ arbitration case in the International Court of Justice (ICJ) regarding maritime features in the Spratly Islands to challenge China’s controversial “nine-dash-line” claim and occupation of certain areas. The Philippines’ case is a monumental approach to resolve territorial disputes, including supporting their arguments under the United Nations Convention on the Law of the Sea (UNCLOS) and can strengthen new arbitration options for the Philippines and other claimants against China.
ICJ and the SCS Disputes Between the Philippines and China
According to China, their claims to the Spratlys are based on “historical rights”. An issue in China’s reclamation agenda is their argument that its land boundaries were never defined or delimited (Malik, 2013). However, when dealing with islands, shoals, and reefs in the SCS, Beijing makes decisive claims. Associated with “historical rights”, China also claims territories within its “nine-dash-line” adopted by the Communist Party of China in 1949 when it took control of mainland China (Yujuio). Over centuries, the conflict of overlapping zones, with economic importance for various nations, became seemingly complicated as Southeast Asian countries like the Philippines began to develop their own historical claims.
While the Court prepares to hear the Philippines’ arguments, the case to protect free waterways and hold sovereignty rights are in line with 3 major questions the Court will need to consider in the Philippines’ memorial. The first issue is to question the status of China’s nine-dash-line, which Manila argues is an excessive claim and allows China to continuously violate the accords agreed upon concerning the rights of coastal states in the UNCLOS (McDevitt et. al., 2012). China’s nine-dash-line claim has been kept under a scope of legal ambiguity in the SCS. With the issue of the Court’s jurisdiction already resolved, it will only expose China’s legal weakness and gives China less room to maintain ambiguity with the false impression that it can pursue its territorial claims with no consequence (McDevitt et. al., 2012).
With the jurisdictional hurdle out of the way, however, the Court is left with the responsibility to ensure that the practice of principles in accordance to international law is respected as it hears the dispute. The argument held by China is that it holds sovereignty rights within the 12-mile barrier, but their claims are ambiguous and not accepted by countries close to these boundaries. Not only does their excessive historic claim not comply with UNCLOS, a notable agreement that Beijing signed in the past, but UNCLOS also does not acknowledge artificial outposts, similar to what China has made, as legitimate territories (Tiezzi, 2015). With the growing presence of Chinese vessels blocking off Philippine vessels, the Philippines has the basis to argue that China has violated an essential principle of UNCLOS, specifically its direct violation of the “freedom of navigation” clause in Article 87 of UNCLOS.
The first 6 features presented will be low tide elevations, completely submerged under water, which are: Mischief Reef (130 nm from Palawan), McKennan Reef (180 nm), Gaven Reef (205 nm), Subi Reef (230 nm), Second Thomas Shoal (105 nm), and Hughes Reef (250 nm) (Kraska, 2015). See Table 2. Argued by Jandeleza, these features are submerged even during high tide, thus excluding any valid entitlements to territorial sea or EEZ to China. These features would be a challenge to the concrete structures and helicopter landing platforms constructed by China since 1995 and favor the Philippines because although these built structures protrude above water, they are not “naturally formed land”, as stated in the Article 121 of UNCLOS, and cannot be recognized as “islands”, thus nullifying China’s EEZ entitlements (Santos, 2014). The other remaining 4 features to be argued are “rocks and reefs”, which to the greatest extent are entitled up to 12 nm of territorial sea. The features in question are: Scarborough Shoal (120 nm from Luzon), Johnson Reef (180 nm from Palawan), Cuarterton Reef (240 nm), and Fiery Cross Reef (255 nm) (Santos, 2014).
Taking into consideration the influence of the Philippines’ arbitration case, along with its effectiveness to enable the Philippines to improve its military and administrative developments within the Spratly Islands, the arbitration strategy is an effective tool to question the legitimacy of China’s territorial claims. The territorial disputes escalating between these two nations are volatile issues that cannot be simply brushed aside. Implications can possibly arise because of this arbitration case concerning overlapping national interests and resources, which can lead to increased risk of strained economic relations between the Philippines and China. Though the arbitration case has its share of challenges, the fact of the matter is questioning China’s nine-dash-line claims on the basis of historic rights, use of legal precedence, clarifying major maritime features, and establishing greater international support, are all beneficial for the Philippines’ cause to secure national interests in the Spratlys.
Reference for Further Information
Asia Maritime Transparency Initiative (2015) “Airpower in the South China Sea” http://amti.csis.org/airstrips-scs/ Accessed November 21, 2015
Asian Review (2015) “Japan to mull SDF dispatch to S. China Sea: Abe” http://asia.nikkei.com/Politics-Economy/International-Relations/Japan-to-mull-SDF-dispatch-to-S.-China-Sea-Abe Accessed November 21, 2015
Bader, Jeffrey, Lieberthal, Kenneth, McDevitt, Michael (2014) “Keeping the South China Sea Perspective”
Brookings Institute. http://www.brookings.edu/~/media/research/files/papers/2014/08/south-china-sea-perspective-bader-lieberthal-mcdevitt/south-china-sea-perspective-bader-lieberthal-mcdevitt.pdf Accessed November 21, 2015
Batongbacal, Jay L. (2015) “Arbitration 101: Philippines v. China” http://amti.csis.org/arbitration-101-philippines-v-china/ Accessed November 21, 2015
Batongbacal, Jay L. (2014) “PHL's Memorial against China: What it may look like” http://www.gmanetwork.com/news/story/355993/news/specialreports/phl-s-memorial-against-china-what-it-may-look-like Accessed November 21, 2015
Bau, Tzong-ho, Tso, Cheng-dong, Liao, Hsiao-chuan (2014) “Crisis Events among Five States in East Asia, 2001-2013/06” http://www.cppl.ntu.edu.tw/research/2014research/summary/CrisisEventsAmongFiveStatesInEastAsiaManual.pdf Accessed November 21, 2015
BBC News (2015) “China hits back at US in row over South China Sea” http://www.bbc.com/news/world-australia-34529863 Accessed November 21, 2013
Borton, James (2015) “The South China Sea: Challenges and Promises” https://books.google.com/books?id=gAWFBgAAQBAJ&pg=PT62&dq=james+borton+the+south+china+sea+china+partial+rule+maker+rule+breaker&hl=en&sa=X&ved=0ahUKEwi_muWTrKPJAhWEQCYKHat_A5UQ6AEIHTAA#v=onepage&q=james%20borton%20the%20south%20china%20sea%20china%20partial%20rule%20maker%20rule%20breaker&f=false Accessed November 21, 2015
Buszynski, Leszek, Roberts, Christopher (2013) “The South China Sea and Australia’s Regional Security Environment” http://nsc.anu.edu.au/documents/occasional-5.pdf Accessed November 21, 2015
Calvo, Alex (2015) “China, the Philippines, Vietnam, and International Arbitration in the South China Sea” The Asia-Pacific Journal, Vol. 13, Issue. 42, No. 2 http://www.globalresearch.ca/china-the-philippines-vietnam-and-international-arbitration-in-the-south-china-sea/5484992 Accessed November 21, 2015
Cuong, Do Viet (2015) “Don’t Believe China’s South China Sea Case Statement” http://thediplomat.com/2015/11/dont-believe-chinas-statement-on-the-south-china-sea-case/ Accessed November 21, 2015
De Luce, Dan, McLeary, Paul (2015) “In South China Sea, a Tougher U.S. Stance” http://foreignpolicy.com/2015/10/02/in-south-china-sea-a-tougher-u-s-stance/ Accessed November 21, 2015
Dor, Alexandre (2015) “Philippine Nationalism and the South China Sea” http://thediplomat.com/2015/08/philippine-nationalism-and-the-south-china-sea/ Accessed November 21, 2015
Freedberg Jr., Sydney (2015) “The Price of Delay: US Navy To Challenge Chinese Claims” http://breakingdefense.com/2015/10/navy-to-challenge-chinese-claims-at-last-the-price-of-delay/ Accessed November 21, 2015
Glaser, Bonnie S. (2012) “Armed Clash in the South China Sea” http://www.cfr.org/world/armed-clash-south-china-sea/p27883 Accessed November 21, 2015
Goldenziel, Jill (2015) “International Law Is the Real Threat to China's South China Sea Claims” http://thediplomat.com/2015/11/international-law-is-the-real-threat-to-chinas-south-china-sea-claims/ Accessed November 21, 2015
Heredia, Armando J. (2015) “Opinion: U.N. Ruling is Turning Point for Overlapping South China Sea Claims” http://news.usni.org/2015/11/02/15492 Accessed November 21, 2015
Jackson, Jon Wesley (2005) “China in the South China Sea: Genuine Multilateralism or a Wolf in Sheep’s Clothing?” handle.dtic.mil/100.2/ADA443143 Accessed November 21, 2015
Katigbak, Jose (2015) “US to China: Clarify your boundary” http://www.philstar.com/headlines/2015/04/17/1444755/us-china-clarify-your-boundary Accessed November 21, 2015
Kingdon, Emma (2015) “A Case for Arbitration: The Philippines’ Solution for the South China Sea Dispute” Boston College International and Comparative Law Review, Volume 38, Issue 1, Article 5 http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1738&context=iclr Accessed November 21, 2015
Kraska, James (2015) “A Legal Analysis of the Philippine-China Arbitration Ruling” http://thediplomat.com/2015/11/a-legal-analysis-of-the-philippine-china-arbitration-ruling/ Accessed November 21, 2015
Malik, Mohan (2013) “Historical Fiction: China’s South China Sea Claims” http://www.worldaffairsjournal.org/article/historical-fiction-china%E2%80%99s-south-china-sea-claims Accessed November 21, 2015
McDevitt, Michael A., Fravel, M. Taylor, Stern, Lewis M. (2012) “The Long Littoral Project: South China Sea: A Maritime Perspective on Indo-Pacific Security” https://www.cna.org/CNA_files/PDF/IRP-2012-U-2321-Final.pdf Accessed November 21, 2015
Panda, Ankit (2015) “Philippines v. China: Court Rules Favorably on Jurisdiction, Case Will Proceed” http://thediplomat.com/2015/10/philippines-v-china-court-rules-favorably-on-jurisdiction-case-will-proceed/ Accessed November 21, 2015
Pazzibugan, Dona Z. (2012) “Chinese Warship Stuck on PH Reef” http://globalnation.inquirer.net/44041/chinese-warship-stuck-on-ph-reef Accessed November 21, 2015
Poling, Gregory (2015) “Why Manila Shouldn’t Hope to Win It All In Arbitration” http://amti.csis.org/why-manila-shouldnt-hope-to-win-it-all-in-arbitration/ Accessed November 21, 2015
Rosen, Mark E. (2015) “Using International Law to Defuse Current Controversies in the South and East China Seas” www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA615709 Accessed November 21, 2015
Roy, Nalanda (2012) “Managing Conflict in Troubled Waters: The Case of the South China Sea” http://dga.rutgers.edu/wp-content/uploads/2012/10/Managing-Conflict-in-Troubled-Waters-The-Case-of-the-South-China-Sea.pdf Accessed November 21, 2015
Santos, Matikas (2014) “UNCLOS explained: Why China’s claims in South China Sea are invalid” http://globalnation.inquirer.net/99689/unclos-explained-why-chinas-claims-in-south-china-sea-are-invalid Accessed November 21, 2015
Santos, Tina G. (2014) “PH, Chinese Naval Vessels in Scarborough Shoal Standoff” http://globalnation.inquirer.net/32341/ph-chinese-naval-vessels-in-scarborough-shoal-standoff Accessed November 21, 2015
Thuy, Tran Truong (2011) “Recent Developments in the South China Sea: Implications for Regional Security and Cooperation” http://csis.org/files/publication/110629_Thuy_South_China_Sea.pdf Accessed November 21, 2015
Tiezzi, Shannon (2015) “China Won't 'Militarize' the South China Sea -- But It Will Build Military Facilities There” http://thediplomat.com/2015/10/china-wont-militarize-the-south-china-sea-but-it-will-build-military-facilities-there/ Accessed November 21, 2015
UNCLOS, Part VII (2015) “High Seas” http://www.un.org/depts/los/convention_agreements/texts/unclos/part7.htm Accessed November 21, 2015
UNCLOS, Sec. 2 (2015) “Conservation and Management of Living Resources in the High Seas” http://www.un.org/depts/los/convention_agreements/texts/unclos/part7.htm Accessed November 21, 2015
Vu, Truong-Minh, Pham, Trang (2015) “Who Will ‘Win’ in the Philippines’ South China Sea Case Against China?” http://thediplomat.com/2015/08/who-will-win-in-the-philippines-south-china-sea-case-against-china/ Accessed November 21, 2015
Yorac, Haydee B. (2012) “The Philippine Claim to the Spratly Island Group” http://plj.upd.edu.ph/the-philippine-claim-to-the-spratly-island-group/ Accessed November 21, 2015
Yujuico, Emmanuel (2015) “The real story behind the South China Sea dispute” http://www.lse.ac.uk/IDEAS/pdf/SEAPpdf/SA_southchinaseadispute.pdf Accessed November 21, 2015
Earl Beltran Dalmaceda is a graduate student at the School of Global Policy and Strategy, UC San Diego. He worked for Rep. George Miller (D-CA) from 2011 to 2012 and Natomas Unified School District from 2013 to 2014. He is interested in the security issues in Southeast Asia, especially those involving his homeland, the Philippines.