The South China Sea Arbitration (Philippines v. China, PCA case number 2013–19) was an arbitration case brought by the Republic of the Philippines against the People's Republic of China (PRC) under Annex VII (subject to Part XV) of the United Nations Convention on the Law of the Sea (UNCLOS, ratified by the Philippines in 1984, by the PRC in 1996, opted out from Section 2 of Part XV by China in 2006) concerning certain issues in the South China Sea, including the nine-dash line introduced by the mainland-based Republic of China since as early as 1947. A tribunal of arbitrators appointed the Permanent Court of Arbitration (PCA) as the registry for the proceedings.
On 19 February 2013, China declared that it would not participate in the arbitration. On 7 December 2014, it published a white paper to elaborate its position that, among other points, the tribunal lacks jurisdiction. In accordance with Article 3 of Annex VII of UNCLOS, the Philippines appointed 1 of the 5 arbitrators, while China did not appoint any. On 29 October 2015, the tribunal concluded that it had jurisdiction to consider seven of the Philippines' submissions, subject to certain conditions, and postponed the consideration of its jurisdiction on the other eight submissions to the merits phase.
On 12 July 2016, the arbitral tribunal ruled in favor of the Philippines on most of its submissions. It clarified that while it would not "rule on any question of sovereignty ... and would not delimit any maritime boundary", China's historic rights claims over maritime areas (as opposed to land masses and territorial waters) within the "nine-dash line" have no lawful effect unless entitled to under UNCLOS. China has rejected the ruling, as has Taiwan. , 26 governments support the ruling, 17 issued generally positive statements noting the ruling but not called for compliance, and eight rejected it. The United Nations does not hold any position on the case or on the disputed claims.
Background
Neither the Republic of China nor the People's Republic of China were invited to the treaty negotiations after Japan renounced all claims to the Spratly Islands and other conquered islands and territories in the Treaty of San Francisco, and the treaty did not designate successor states. See also: United Nations Treaty Series 1952 (reg. no. 1832), vol. 136, pp. 45–164. On 15 August 1951, in reaction to China's exclusion from the talks, the PRC government issued the Declaration on the Draft Peace Treaty with Japan by the US and the UK and on the San Francisco Conference by the then Foreign Minister Zhou Enlai, protesting the absence of any provisions in the draft on who shall take over the South China Sea islands. It reasserted China's sovereignty over the archipelagos in the South China Sea, including the Spratly Islands, and reiterated that "the Chinese government of the day had taken over those islands" and that the PRC's rightful sovereignty "shall remain intact".
On 28 April 1952, the United States presided over the signing of the Treaty of Peace between Japan and the Republic of China. Article 2 of the document provided that "It is recognized that under Article 2 of the Treaty of Peace which Japan signed at the city of San Francisco on 8 September 1951 (hereinafter referred to as the San Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the Paracel Islands."
The Philippines bases its claim on its geographical proximity to the Spratly Islands.
In May 1956, the dispute escalated after Filipino national Tomas Cloma and his followers settled on the islands and declared the territory as "Freedomland", now known as Kalayaan for himself and later requested to make the territory a protectorate of the Philippines. Tomas Cloma even stole China (ROC)'s national flag from the Taiping Island. In July 1956, he apologised officially for his act and he surrendered the flag he stole to China's embassy in Manila. On 2 October 1956, he wrote a letter and ensured he would not make further training voyages or landings in the territorial waters of China (ROC).
Philippine troops were sent to three of the islands in 1968, when the Philippines were under President Ferdinand Marcos. In the 1970s, some countries began to occupy islands and reefs in the Spratlys. In 1978, President Marcos issued a decree placing the Spratlys under the jurisdiction of the province of Palawan. The PRC claims it is entitled to the Paracel and Spratly Islands because they were allegedly regarded as integral parts of China under the Ming dynasty based on a 1947 map showing a nine-dash line.
Vietnam states that the islands have belonged to it since the 17th century, using historical documents of ownership as evidence. Hanoi began to occupy the westernmost islands during this period.
In the early 1970s, Malaysia joined the dispute by claiming the islands nearest to it.
Brunei also claims Louisa Reef and Rifleman Bank, although some sources consider that claim to be weak.
Participants The arbitration case involved the Philippines and China but only the Philippines participated in the arbitration.
Optional exceptions to applicability of compulsory procedure Article 298 of Section 3 of Part XV of the Convention provides optional exceptions to the applicability of compulsory procedures provided in Section 2. China made a declaration in 2006 in accordance with this provision of the Convention purporting not to accept any of the procedures provided for in section 2 of Part XV of the convention. Many countries including the United Kingdom, Australia, Italy, France, Canada, and Spain had made similar declarations to reject any of the procedures provided for in sections 2 of Part XV of the convention with respect to the different categories of disputes. However, the Tribunal held that this dispute did not fall within the exceptions provided in Article 298, and was therefore admissible.
Philippine stance The Philippine's decision to initiate the arbitration was prompted by the 2012 Scarborough Shoal fishing dispute and the standoff that resulted during the dispute.
In the arbitration, the Philippines contended that the "nine-dotted line" claim by China is invalid because it violates the UNCLOS agreements about exclusive economic zones and territorial seas. Its position was that because most of the features in the South China Sea, such as most of the Spratly Islands, cannot sustain life, they cannot be given their own continental shelf as defined in the convention.
In framing its contentions, the Philippines' "submissions scrupulously avoided treading on questions of territorial sovereignty and boundary delimitation, which would fall outside the tribunal's" jurisdiction.
Agent: Office of the Solicitor General of the Philippines Counsel and Advocates Paul S. Reichler, Lawrence H. Martin and Andrew B. Loewenstein of Foley Hoag Professor Bernard H. Oxman of University of Miami School of Law Professor Philippe Sands QC of Matrix Chambers Professor Alan Boyle of Essex Court Chambers
Chinese stance The Philippines' initiation of the arbitration was followed by extensive internal debates among Chinese policymakers about whether China should participate in the arbitration. Participating and losing could impact domestic sentiment and might have regional implications for China's other maritime territorial claims. The nine-dash line predated UNCLOS, and its lack of defined coordinates was a weakness under current international law. Chinese policymakers had previously sought to preserve the ambiguity of its status in an effort to preserve the status quo and manage its claims and relations with neighbors. Policymakers were also reticent because of concerns that the proceedings would not be fair, citing the fact that the president of ITLOS, Shunji Yanai, was Japanese. Some policymakers also were concerned about the procedure given that China had no precedent for using arbitration to resolve territorial disagreements. Others favored participation in order to be able to shape the proceedings, including because only by participating would China have the ability to appoint an arbitrator to the panel.
China declined to participate in the arbitration and stated that it would not accept any arbitration result. As part of its grounds for nonparticipation and nonacceptance, China cited the fact that China is a signatory to the 2006 UNCLOS exclusion clause which removes sovereignty and boundary delimitations issues from arbitration procedures.
China stated that several treaties with the Philippines stipulate that bilateral negotiations be used to resolve border disputes and that the Philippines of violating the 2002 ASEAN-China voluntary Declaration on the Conduct of Parties in the South China Sea, which also stipulated bilateral negotiations as the means of resolving border and other disputes. According to this view, the Philippines had breached the parties' mutual agreements by beginning the arbitration unilaterally.
China described the proceedings as undermining regional stability and said that the Philippines was manipulating international law to damage China's territorial claims. The arbitration did have jurisdiction over sovereignty matters; China contended that the Philippines claims were in fact sovereignty arguments by another name.
China's December 2014 white paper ("On the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines") focused on the contention that the dispute was not subject to arbitration because it was ultimately a matter of sovereignty, not exploitation rights.Ben Blanchard (24 July 2015),China also says U.S. is trying to influence Philippines' sea case Reuters. China also cited its signing of the 2006 UNCLOS arbitration exclusion for sovereignty and boundary limitations disputes.
Claimants of South China Sea islands Taiwanese stance Taiwan, officially the Republic of China, stated that the South China Sea islands were first discovered, named, and used by Chinese people. It currently administers Taiping Island or Itu Aba, the largest of the Spratly Islands, but was neither consulted nor invited to the arbitration. Taipei argues that Taiping can sustain human habitation with its freshwater wells and produce, and is thus an island under UNCLOS. It had invited the Philippines and five arbitrators to visit Taiping; the Philippines rejected the invitation, and there was no response from the arbitrators. According to Ian Storey, a regional expert at the ISEAS–Yusof Ishak Institute, for decades, the common understanding among scholars was that "Itu Aba is the only island in the Spratlys". After the tribunal downgraded Itu Aba to a rock, Taiwan rejected the ruling, saying it is "not legally binding on the ROC". It pointed out that the status of Itu Aba was not a point of contention raised by the Philippines, who had brought the case, but was opened up by the tribunal on its own initiative. Lawmakers from the ruling KMT and the opposition DPP also joined in to express their disapprovals. Taiwan's Fisheries Agency declared that Taiwanese fishermen could continue to operate in the waters surrounding Taiping. The coast guard had already deployed a vessel to the area, and a naval frigate mission was pushed ahead of schedule in response to the ruling.
Vietnamese stance On 11 December 2014, Vietnam filed a statement to the tribunal which put forward three points: 1) Vietnam supports the filing of this case by the Philippines, 2) it rejects China's "nine-dashed line", and 3) it asks the arbitral tribunal to take note of Vietnam's claims on certain islands such as the Paracels.
Other stances