Philippine Arbitration Against China Over the South China Sea

Home , Cuarteron Reef, Philippine Sea, Scarborough Shoal, West Philippine Sea

asia-pacific journal of ocean law and policy 1 (2016) 121-126 brill.com/apoc

Philippine Arbitration against China over the South China Sea

Lowell Bautista University of Wollongong, Australia [email protected]

1 Institution of Arbitral Proceedings

On 22 January 2013 the Philippines initiated international arbitration against the People’s Republic of China (China) regarding its territorial and maritime dispute in the South China Sea – known as the West Philippine Sea in Manila.1 It was a bold move which has been labeled a “game changer” in the continuing saga of longstanding conflicting claims in the South China Sea.2 The Philippines decided to take legal action after a series of increasing aggres- sive behavior and provocative actions on the part of China. This included a tense standoff in April 2012 between the Philippines and China over access to Scarborough Shoal (Bajo de Masinloc) which brought tensions in the South China Sea to their highest level since the 1994 Mischief Reef incident.

2 Factual Background

The Philippines asserts that China’s claim to “sovereignty” and “sovereign rights” over the maritime area within its so-called “nine dash line” encompass- ing around 80 per cent of the entire South China Sea has interfered with the rights of the Philippines under the United Nations Convention on the Law of

* Lecturer, School of Law and Staff Member, Australian National Centre for Ocean Resources and Security (ancors), Faculty of Law, Humanities and the Arts, University of Wollongong, Australia. 1 Republic of the Philippines, Department Of Foreign Affairs, Notification and Statement of Claim, Manila, 22 January 2013. [Hereinafter, Notification and Statement of Claim]. 2 Oliver Teves, ‘Philippine president says arbitration is only peaceful way to settle sea dispute with China’, The Canadian Press, 22 October 2014.

122 Bautista the Sea (LOSC) over its own exclusive economic zone (EEZ) and continental shelf.3 In addition, according to the Philippines, China has seized control and occupied several small, uninhabitable coral projections, submerged features and protruding rocks barely above water at high tide.4 The Philippines also asserts that China has claimed maritime zones surrounding these features great- er than 12 nautical miles from which it has excluded the Philippines despite these waters being located within Philippine eez or in international waters.5 These features include Mischief Reef, McKennan Reef, Gaven Reef and Subi Reef, which, in the view of the Philippines, are at best low tide elevations and part of the Philippine continental shelf or the international seabed.6 The Phil- ippines alleges further that China has also seized the following features in the Spratly Islands: Johnson Reef, Cuarteron Reef and Fiery Cross Reef, which it considers as “submerged reefs with no more than a few rocks protruding above sea level at high tide.”7 In essence, the Philippines is arguing, first, that these submerged features in the South China Sea which are not above sea level at high tide, are not islands under the Convention. Secondly, these submerged features are part of the seabed and subject to the regime of the continental shelf under Part vi of the Con- vention and cannot be acquired by a State or subject to its sovereignty since they are not located in a coastal state’s territorial sea. Third, since these submerged features are not above sea level at high tide, nor are they located on China’s continental shelf, the occupation of China of these submerged features is unlawful under the Convention. Fourth, the features which remain above water at high tide qualify as “rocks” under Article 121(3) of the Convention. Therefore, they only generate an entitlement of a maximum 12-nautical territorial sea. Any- thing beyond this is unlawful under the Convention, as China has claimed over the features. Lastly, China’s exploitation and prevention of the Philippines from exploiting the living and non-living resources in the Philippines’ eez and continental shelf, as well as the interference with the exercise by the Philippines of its navigational rights over these waters, are all unlawful under the Convention.8 The Philippines is aware of the 2006 Chinese Declaration9 and has avoided raising subjects or claims that China has, by virtue of that Declar ation,

3 Notification and Statement of Claim, paragraph 2. 4 Notification and Statement of Claim, paragraphs 4 and 14. 5 Notification and Statement of Claim, paragraphs 4, 12 and 13. 6 Notification and Statement of Claim, paragraphs 14 to 19. 7 Notification and Statement of Claim, paragraphs 22 and 23. 8 Notification and Statement of Claim, paragraph 31. 9 China, Declaration made after ratification (25 August 2006), Declarations and state- ments, United Nations Division for Ocean Affairs and the Law of the Sea, available at

asia-pacific journal of ocean law and policy 1 (2016) 121-126