1 Introduction BING BING JIA AND Stefan TALMON I. THE DISPUTES BETWEEN THE PHILIPPINES AND CHINA IN THE SOUTH CHINA SEA N GEOGRAPHICAL TERMS, the South China Sea covers a sea area of some 3.5 million square kilometres (km) which is semi- enclosed by Brunei, China, Indonesia, Malaysia, the Philippines and IVietnam.1 It is part of the Pacific Ocean, dotted by numerous islands, islets, shoals, cays, reefs and rocks that are gathered into four groups. These four island groups, or archipelagos, are known to both Chinese and foreign sources as the Xisha [Paracel] Islands; Dongsha [Pratas] Islands; Zhongsha Islands, including Huangyan Island [Macclesfield Bank, including Scarborough Shoal]; and Nansha [Spratly] Islands.2 The groups fall within an area with the coordinates of 3°57’ to 21°N and 109°30’ to 117°50’E, stretching for a distance of approximately 1,800 km from the north to the south, and about 900 km from the east to the 1 International Hydrographic Organisation, Limits of Oceans and Seas, Special Publication No 23, 3rd edn (Monte-Carlo, Imp Monégasque, 1953) 30–31; China Institute of Marine Affairs, State Oceanic Administration, Zhong Guo Hai Yang Fa Zhan Bao Gao [China’s Ocean Development Report] (Beijing, Hai Yang Chu Ban She [Oceans Press], 2011) 19–20. The publication by the International Hydrographic Organisation is in the course of revision: Chris Rahman and Martin Tsamenyi, ‘A Strategic Perspective on Security and Naval Issues in the South China Sea’ (2010) 41 Ocean Development and International Law 315, 316. 2 China Institute of Marine Affairs, Zhong Guo Hai Yang Fa Zhan Bao Gao [China’s Ocean Development Report] 20. The Report also provides the following details: the Xisha Islands comprise 32 islands and islets, each possessing a surface area larger than five hundred square meters; the Zhongsha Islands are composed of rocks, sandbanks, and reefs among which, by virtue of two rocks, only Huangyan Island (or Scarborough Shoal or Reef) rises above sea level at high tide; the Nansha Islands consist of over 230 islands, islets, rocks, banks, and shoals, among which 25 are islands (ibid, 24). Another Chinese publication describes the Dongsha Islands as comprising Dongsha [Pratas] Island, the Dongsha [Pratas] Reef, and two banks; see Guang Dong Provincial Commission of Toponymy, Nan Hai Zhu Dao Di Ming Zi Liao Hui Bian [Collection of Materials Regarding the Geographical Names of the Islands in the South China Sea] (Guangzhou, Guang Dong Di Tu Chu Ban She [Provincial Press of Maps and Atlases], 1987) 164–68. Useful references with regard to the geography and names of those islands may also be found in Marvyn S Samuels, Contest for the South China Sea (New York, Methuen, 1982) 183–94. 2 Introduction west.3 By virtue of its geographic position, the South China Sea forms part of the vital route for maritime trade and transport for East Asian and Southeast Asian States and their trading partners in Asia, Africa and beyond.4 More than half of the annual global merchant fleet tonnage sails through the South China Sea, with over 70,000 ships entering or exiting the South China Sea through the Malacca and Singapore Straits annually.5 There are rich fisheries in the South China Sea, ranking fourth in terms of annual marine production.6 For example, China’s marine fishery production in the South China Sea in 2011 was more than 7 million tons, with 3.39 million tons from catch production and the rest from aquaculture production.7 That accounted for more than 25 per cent of the country’s total catch production in 2011. That year capture fisheries in the South China Sea supported over 27,430 Chinese fishing vessels, although the majority of them seem to operate in waters off the mainland coast.8 Fisheries resources are especially rich in the abyssal region of the Nansha [Spratly] Islands and their adjacent waters. In addition, there are expanding prospects for the exploitation of oil and natural gas reserves in the seabed and subsoil.9 The proximity of the littoral States of the South China Sea means that disputes over regional control and influence are bound to arise almost automatically. Such disputes have manifested themselves in a complex and intractable web of territorial and maritime jurisdictional disputes. Five countries (China, both the mainland and Taiwan; Vietnam; the Philippines; Malaysia and Brunei) claim territorial sovereignty over land features in the South China Sea and six countries (China, both the mainland and Taiwan; Vietnam; the Philippines; Malaysia; Brunei and Indonesia) have overlapping claims to various maritime zones in the area. However, disputes between the coastal States became more intense only in the post-1970 era. In the long history of the South China Sea, dating back to at least the third century AD,10 China has been a major player in the area. This is evidenced not least by the fact of the name given to this sea area, which comprises numerous 3 China Institute of Marine Affairs, Zhong Guo Hai Yang Fa Zhan Bao Gao [China’s Ocean Development Report] (2011) 20. 4 Rahman and Tsamenyi, ‘A Strategic Perspective on Security and Naval Issues in the South China Sea’ 316–18. 5 ibid, 317. 6 Tom Naess, ‘Dangers to the Environment’ in Timo Kovomäki (ed), War or Peace in the South China Sea? (Copenhagen, NIAS Press, 2002) 43, 44. 7 PRC Ministry of Agriculture, Fisheries Bureau, Zhong Guo Yu Ye Tong Ji Nian Jian 2013 [China Fisheries Statistics Yearbook 2013] (Beijing, Zhong Guo Nong Ye Chu Ban She [China Agriculture Press], 2013) 46. 8 PRC Ministry of Agriculture, Fisheries Bureau, Zhong Guo Yu Ye Nian Jian 2012 [China Fisheries Yearbook 2012] (Beijing, Zhong Guo Nong Ye Chu Ban She [China Agriculture Press], 2012) 174 (that figure is for fishing vessels subject to the annual fishing ban in the South China Sea). 9 Lee Lai To, China and the South China Sea Dialogues (Westport, Praeger, 1999) 10–12. 10 Jianming Shen, ‘China’s Sovereignty over the South China Sea Islands: A Historical Perspective’ (2002) 1 Chinese Journal of International Law 94, 102–05. The Disputes between the Philippines and China in the South China Sea 3 islands and other insular features. The involvement of other littoral States in the South China Sea has been much more recent. The Philippines, for example, only gained independence in 1946. The issues that prompted the present arbitration have an even more recent history and date back to the beginning of the 1970s. The purpose of this brief introduction is not to elaborate on the long history of the South China Sea,11 but rather to focus on the very facts that gave rise, or are relevant to the Philippines’ filing of the Notification and Statement of Claim against China in January 2013.12 In June 1933, the then Chinese Government appointed a Commission that was tasked with reviewing maps and atlases produced by private sources in China. This Review Commission of Maps for Land and Water published in January 1935 a list of 132 names, both in English and Chinese, for Chinese islands and other insular features in the South China Sea, which included the Xisha [Paracel] Islands; Dongsha [Pratas] Islands; Zhongsha Islands, including Huangyan Island [Macclesfield Bank, including Scarborough Shoal]; and Nansha [Spratly] Islands.13 A month later, the Commission’s Gazette published a map of the Chinese islands of the South China Sea.14 In 1946, China recovered from Japan the Xisha [Paracel] and Nansha [Spratly] Islands.15 There was no reaction from Vietnam or any other State, and the Chinese naval contingent which was sent to the islands erected stone markers on Yong Xing [Woody] Island in the Xisha [Paracel] Islands and Taiping [Itu Aba] Island in the Nansha [Spratly] Islands.16 Following further inspections and surveys, the then Chinese Government internally circulated an atlas in 1947, drawing an eleven- dash line to indicate the geographical scope of its authority over the South China Sea, right down to the Zengmu Ansha [James Shoal], at 3°58’N 112°17’E.17 In the same year, the Ministry of the Interior published a list 11 For a detailed account, see Samuels, Contest for the South China Sea (1982). For a brief overview, see Stein Tønnesson, ‘The History of the Dispute’ in Timo Kovomäki (ed), War or Peace in the South China Sea? (Copenhagen, NIAS Press, 2002) 6–23. For an official account of the history, see Position Paper of the People’s Republic of China on the Issue of the South China Sea (17 November 2000) Annex I, Doc A.27. 12 Republic of the Philippines (RP), Department of Foreign Affairs (DFA), Notification and Statement of Claim (22 January 2013) Annex I, Doc B.2 (Notification and Statement of Claim). 13 The Review Commission of Maps for Land and Water, Shui Lu Di Tu Shen Cha Wei Yuan Hui Hui Kan [Gazette of the Review Commission of Maps for Land and Water], vol 1 (Nanjing, the Commission, January1935) 61–65. 14 See the Review Commission of Maps for Land and Water, Shui Lu Di Tu Shen Cha Wei Yuan Hui Hui Kan [Gazette of the Review Commission of Maps for Land and Water], vol 2 (Nanjing, the Commission, April 1935) 68–69. 15 See Hungdah Chiu and Choon-Ho Park, ‘Legal Status of the Paracel and Spratly Islands’ (1975) 32 Ocean Development and International Law 1, 12–13. 16 Zhenhua Han, Jinzhi Lin, and Fengbin Wu (eds), Wo Guo Nan Hai Zhu Dao Shi Liao Hui Bian [Collection of Historical Materials Concerning Our Country’s Islands in the South China Sea] (Beijing, Dong Fang Chu Ban She [Orient Press], 1988) 180–81 (reproducing a publication of May 1948, which contained an account by the Chinese naval command of the Chinese navy’s action on the islands).