Public International Law Essay - South China Sea Dispute
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UNIVERSITY OF TECHNOLOGY SYDNEY
Public International Law (Law 70108)
Added on 2020-03-04
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This assignment evaluates the Philippines vs China case and assesses the ruling by the International Court of Arbitration on the South China Seas dispute. The case was made based on the UNCLOS, which stands for United Nations Convention on the Law. China made a declaration in 2013 regarding not taking part in the arbitration procedure and in 2014 published a white paper where they elaborated their position.
Public International Law Essay - South China Sea Dispute
UNIVERSITY OF TECHNOLOGY SYDNEY
Public International Law (Law 70108)
Added on 2020-03-04
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SOUTH CHINA SEA DISPUTE2Philippines v. China1, also referred to as the South China Sea Arbitration case, is a case which was brought by the Republic of the Philippines against People’s Republic of China. The case wasmade based on the UNCLOS2, which stands for United Nations Convention on the Law, particularly its Annex VII3. The defendant claimed on the issues relating to nine-dotted line and the issues in South China Sea4. China made a declaration in 2013 regarding not taking part in the arbitration procedure and in 2014 published a white paper where they elaborated their position. The arbitral tribunal considered the fifteen submissions made by Philippines and ruled that they had the proper jurisdiction in this matter. After considering the entire case, in 2016, the ruling was given in the favor of Philippines5. The following parts contain a critical analysis of this case,with a particular reference to the UNCLOS. Before critiquing the case, there is a need to understand the factual background of this case. In 2013, a complaint was filed by Philippines once China took control over the reef which was located 140 miles away from the Philippines Coast. This resulted in China being accused of violating the international laws as the ships were endangered and the fishing was interfered with, along with the failure on part of China in safeguarding the reef’s marine environment, famously known as the Scarborough Shoal. Philippines asked international tribunal to reject the claims which made by China, whereby the sovereignty of water was with China which had been locatedwithin the 9 dash line and which was clearly placed on the official maps of China6. Approximately 90% of these dashes were covered the South China Sea, which was equivalent to 1 (PCA case number 2013–19)2 United Nations Convention on the Law3 United Nations Convention on the Law, Annex VII4 AMTI, “Arbitration on the South China Sea: Rulings from The Hague” (2016) AMTI <https://amti.csis.org/ArbitrationTL/>5 Permanent Court of Arbitration, “The South China Sea Arbitration (The Republic of Philippines v. The People's Republic of China)” (2017) Permanent Court of Arbitration <http://www.pcacases.com/web/view/7>6 Permanent Court of Arbitration, “Arbitration between the Republic of the Philippines” (2015) Permanent Court of Arbitration <https://www.pcacases.com/web/sendAttach/1503>
SOUTH CHINA SEA DISPUTE3size of Mexico and was deemed significant for the international trade owing to the fact that this area was rich in natural resources and even had the possibility of oil deposits. Philippines blamedChina for breaching the international laws due to the dredging the sand for creating the artificial island from the reefs which were located in South China Sea and included the water7.The major issue which was made by Philippines in this case was the invalidity of the Chinese claims regarding the 9 dotted line as the UNCLOS agreement was breached in the matter of exclusive economic zones and territorial seas8. The reason for this was that most of the features of South China Sea, particularly the Spratly Island, could not sustain life and a defined in the UNCLOS, it could not be granted continental shelf9. China, on the other hand, denied the participation in the arbitration proceedings stating that the treaties with Philippines required bilateral negotiations to be used for solving the disputes which were related to border. China accused Philippines of breaching the voluntary declaration which was made in 2002 between ASEAN and China containing the resolution of disputes through bilateral negations in the Conduct of Parties in the South China Sea10. The position paper issued by China in 2014 argued that the nation was no subjected to arbitration as the same was not an exploitation of rights, but an issue of sovereignty11.The complaint was filed under UNCLOS where the rules pertaining to usage of oceans across theglobe are contained. The treaty formed in 1994, was ratified by both the nations, in addition to 7 Jane Perle, “Philippines v. China: Q. and A. on South China Sea Case” (2016) New York Times <https://www.nytimes.com/2016/07/11/world/asia/south-china-sea-philippines-hague.html?_r=0>8 At 69 Michaela Del Callar, “ITLOS completes five-man tribunal that will hear PHL case vs. China” (2013) GMA News Online <http://www.gmanetwork.com/news/news/nation/305570/itlos-completes-five-man-tribunal-that-will-hear-phl-case-vs-china/story/> 10 Greg Torode, “Philippines South China Sea legal case against China gathers pace” (2013) Reuters <http://www.reuters.com/article/us-china-philippines-idUSBRE98Q0BX20130927>11 Ben Blanchard, “China says U.S. trying to influence Philippines' sea case” (2015) Reuters <http://www.reuters.com/article/southchinasea-china-usa-idUSL3N1043AM20150724>
SOUTH CHINA SEA DISPUTE4the EU and 165 states. This treaty stated that the sovereignty over water of any nation was extended to 12 nautical miles from the coast of the nation and such nation had the control on the economic activities in water on continental shelf, in addition to control up to 200 nautical miles from the cost of the nation12. The sovereignty on artificial island’s construction, fishing, mining and oil exploration was included in this. The detailed rules for defining these zones and the way of deciding a dispute through suggestions in cases of overlapping of two nations is provided through this treaty13. A submission was also made by Philippines for the jurisdiction on the basis of Article 29714 and 29815 of UNCLOS. They stated that it was the right of the nation to resolve the clash peacefully and China owed an obligation of not aggravating or extending the dispute till the attainment of resolution. Though, the actions of China were aggravating and extending the dispute16. In this regard, the decision of International Justice in the matter of Electricity Company of Sofia and Bulgaria17 was also cited by Philippines. In this case the judges had recognized universally accepted principles regarding the parties of case to not do something which can result in dispute being aggravated. Philippines also acknowledged that the articulation of this principle regarding the provisional measures decision was commonly invoked here. Reference by Philippines was also made to United States Diplomatic and Consular Staff in Tehran18. And this was supported 12 Katie Hunt, “Philippines vs. China: Court to rule on South China Sea fight” (2016) CNN <http://edition.cnn.com/2016/07/11/asia/philippines-china-south-china-sea-hague-ruling/>13 Permanent Court of Arbitration, “PCA Case Nº 2013-19” (2016) Permanent Court of Arbitration < https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf >14 United Nations Convention on the Law, art 29715 United Nations Convention on the Law,, art 29816 He Yafei, “The Truth Behind the Philippines’ Case on the South China Sea” (2016) Huffington Post <http://www.huffingtonpost.com/he-yafei/philippines-south-china-sea_b_10928374.html>17 (Belgium v. Bulgaria), Interim Measures of Protection, Order of 5 December 1939, PCIJ Series A/B, No. 79, p. 199 (5 December 1939)18 (United States v. Iran), Judgment, ICJ Reports 1980
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