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Philippines submits South China Sea disputes with China to UNCLOS Annex VII arbitration

(22 January 2013)

South China Sea map

On 22 January 2013 the Philippines notified the People's Republic of China of its intention to submit elements of the two countries' disputes concerning sovereignty and maritime jurisdiction in the South China Sea to an arbitration tribunal established under the dispute resolution mechanisms of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

The Notification and Statement of Claim issued by the Philippines sets out the political and legal context for the move, noting that efforts to find a negotiated settlement to the dispute have been exhausted following seventeen years of fruitless discussions.

The Philippines' request to the arbitral tribunal is wide-ranging, asking for an award that:

  • "Declares that China's rights in regard to maritime areas in the South China Sea, like the rights of the Philippines, are those that are established by UNCLOS, and consist of its rights to a Territorial Sea and Contiguous Zone under Part II of the Convention, to an Exclusive Economic Zone under Part V, and to a Continental Shelf under Part VI;
  • Declares that China's maritime claims in the South China Sea based on its so-called "nine dash line" are contrary to UNCLOS and invalid;
  • Requires China to bring its domestic legislation into conformity with its obligations under UNCLOS;
  • Declares that Mischief Reef and McKennan Reef are submerged features that form part of the Continental Shelf of the Philippines under Part VI of the Convention, and that China's occupation of and construction activities on them violate the sovereign rights of the Philippines;
  • Requires that China end its occupation of and activities on Mischief Reef and McKennan Reef;
  • Declares that Gaven Reef and Subi Reef are submerged features in the South China Sea that are not above sea level at high tide, are not islands under the Convention, and are not located on China's Continental Shelf, and that China's occupation of and construction activities on these features are unlawful;
  • Requires China to terminate its occupation of and activities on Gaven Reef and Subi Reef;
  • Declares that Scarborough Shoal, Johnson Reef, Cuarteron Reef and Fiery Cross Reef are submerged features that are below sea level at high tide, except that each has small protrusions that remain above water at high tide, which are "rocks" under Article 121 (3) of the Convention and which therefore generate entitlements only to a Territorial Sea no broader than 12M; and that China has unlawfully claimed maritime entitlements beyond 12 M from these features;
  • Requires that China refrain from preventing Philippine vessels from exploiting in a sustainable manner the living resources in the waters adjacent to Scarborough Shoal and Johnson Reef, and from undertaking other activities inconsistent with the Convention at or in the vicinity of these features;
  • Declares that the Philippines is entitled under UNCLOS to a 12 M Territorial Sea, a 200 M Exclusive Economic Zone, and a Continental Shelf under Parts II, V and VI of UNCLOS, measured from its archipelagic baselines;
  • Declares that China has unlawfully claimed, and has unlawfully exploited, the living and non-living resources in the Philippines' Exclusive Economic Zone and Continental Shelf, and has unlawfully prevented the Philippines 'from exploiting living and non-living resources within its Exclusive Economic Zone and Continental Shelf;
  • Declares that China has unlawfully interfered with the exercise by the Philippines of its rights to navigation and other rights under the Convention 111 areas within and beyond 200 M of the Philippines' archipelagic baselines; and
  • Requires that China desist from these unlawful activities."

The Notification notes that China has made a declaration under Article 298 of UNCLOS which excludes the application of  compulsory binding procedures for the settlement of certain types of dispute, including disputes relating to maritime boundary delimitations and those involving historic bays or titles. However, the Philippines argues that none of these exceptions is applicable to the Philippines' claims in this arbitration, suggesting that:

"The present dispute concerns (a) whether, in light of China's repeated assertions of alleged "sovereign rights and jurisdiction" within the so-called "nine dash line", the Parties' respective rights and obligations in regard to the waters, seabed and maritime features of the South China Sea are governed by the provisions of UNCLOS…; (b) whether China's Claims based on the "nine dash line" are inconsistent with those provisions; (c) whether, under Article 121 of UNCLOS, certain of the maritime features in the South China Sea are islands, low tide elevations or submerged banks, and whether they are capable of generating entitlements to maritime zones greater than 12M; and (d) whether China has violated the right of navigation of the Philippines in the waters of the South China Sea, and the rights of the Philippines in regard to the living and non-living resources within its exclusive economic zone and continental shelf."

At the time of writing China had not publicly responded to the Philippines' move. However, it has consistently rejected proposals for third-party adjudication of disputes in the South China Sea in the past and, despite the carefully-crafted wording of the Notification, it would be surprising if China did not contest the jurisdictional basis of the Philippines' case. Whatever happens next, the Philippines' move is a bold one. While it will not lead to a full resolution of the South China Sea imbroglio or even all the jurisdictional issues contested by the two countries - the Philippines has explicitly excluded questions of island sovereignty and the delimitation of maritime boundaries from the case - the request directly challenges China's longstanding claims over the waters of the South China Sea and forces China to decide whether to justify those claims before an international tribunal with binding authority.

Source: Statement by Secretary of Foreign Affairs Albert del Rosario on the UNCLOS Arbitral Proceedings against China to Achieve a Peaceful and Durable Solution to the Dispute in the West Philippine Sea, 22 January 2013 and Notification and Statement of Claim;

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