Analysis of the Permanent Court of Arbitrations’ (PCA) award in the South China Sea case with reference to United Nations Convention on the Law of Sea

The South China Sea dispute has become one of the world’s most dangerous spot. Six claimants including China contend for control over numerous small land features and resource-rich waters which has steadily increased the tension in the recent years. China, Vietnam, the Philippines, Taiwan, Malaysia and Brunei all have competing claims. Most of these contending countries have been aggressive in recent years, but China has been extremely bold in bringing out broad claims to sovereignty and rights to land features and waters in the South China Sea.[1]China has backed its claims with island-building and naval patrols.[2] The area is becoming a dangerous point, with potentially serious global consequences.[3]

 This article deals with the arbitration case of the South China Sea. The dispute is regarding the legal basis of maritime rights and entitlements in the South China Sea, the status of certain geographic features in the South China Sea, and the lawfulness of certain actions taken by China in the South China Sea.[4] The basis for this arbitration is the 1982 United Nations Convention on the Law of the Sea (the “Convention” or “UNCLOS”).[5] China and Philippines are parties to this convention., the Philippines having ratified it on 8 May 1984, and China on 7 June 1996. The Convention was adopted as a “constitution for the oceans,” in order to settle all issues relating to the law of the sea.[6]With the rise in tension between China and the Philippines and other claimant states the situation has acquired international attention. China, through its “nine-dash line” has claimed the sovereignty over the islands and rocks in the South China. Concerns about security and resources have driven tension in the claimant countries.[7]

In 2013, Philippines invoked remedial provisions in UNCLOS and brought 15 claims against China before an UNCLOS arbitration tribunal at the Permanent Court of Arbitration in The Hague. China immediately announced its opposition to the Philippines action and said that the right way of resolving the disputes is through bilateral negotiations; china further said “it will never change its position of non-acceptance and non-participation in the arbitration.” Although china did not participate in the proceeding but issued a detailed “Position Paper” on December 7, 2014 along with other statements. An important question the case presented was whether the UNCLOS arbitration tribunal had “jurisdiction” to decide the 15 claims. The tribunal however, concluded that it has jurisdiction over the Philippines’ case—but over only seven claims. It did not accept jurisdiction over the other eight claims, which includes one the most important claim by china i.e. China’s famous “nine-dash line. China rejected the jurisdiction of the Tribunal as “null and void” with “no binding effect on China,” and accused the Arbitral Tribunal of having “abused procedures and violating the legitimate rights that China enjoys as a Party to the UNCLOS” and “eroded the integrity and authority of the UNCLOS.”[8] It labeled the Philippines’ initiation of the arbitration “a political provocation under the cloak of law” and called on the Philippines to resolve its disputes with China “through negotiations and consultations.”[9]During the four days of oral argument in November 2015, no one from China appeared or participated.

Three of the most important from the fifteen claims by the Philippines can be summed up as:[10]

(1) declares that the Parties’ respective rights and obligations in regard to the waters, seabed and maritime features of the South China Sea are governed by UNCLOS, and that China’s claims based on its “nine dash line” are inconsistent with the Convention and therefore invalid;

(2) determines whether, under Article 121 of UNCLOS, certain of the maritime features claimed by both China and the Philippines are islands, low tide elevations or submerged banks, and whether they are capable of generating entitlement to maritime zones greater than 12 M; and

(3) Enables the Philippines to exercise and enjoy the rights within and beyond its exclusive economic zone and continental shelf that are established in the Convention.

Tribunal’s Award:

On July 12, 2016, the Tribunal issued its Award and rejected china’s claims over the south china sea. It was considered that the tribunal’s decision will be important step in the South China dispute as it will provide a law- based solution to the most contentious issues. However, its decisions demonstrate that the arbitration tribunal as well as law can make only a very limited contribution to resolving the South China Sea crisis.

[1] Limits of law in the South China Sea, Paul Gewirtz; East Asia Policy paper 8, 2016. https://www.brookings.edu/wp-content/uploads/2016/07/Limits-of-Law-in-the-South-China-Sea-2.pdf

[2]Article- Why is the South China Sea contentious?

http://www.bbc.com/news/world-asia-pacific-13748349

[3]Article- Why is the South China Sea contentious?

 http://www.bbc.com/news/world-asia-pacific-13748349

[4]The Republic of the Philippines v The People’s Republic of China; PCA case nº 2013-19; in the matter of the south china sea arbitration.

https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf

[5] United Nations Convention on the Law of the Sea, 10 December 1982.

http://www.un.org/depts/los/convention_agreements/texts/unclos/annex7.htm

[6]The Republic of the Philippines v The People’s Republic of China; PCA case nº 2013-19; in the matter of the south china sea arbitration.

https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf

[7]The South China Sea Dispute: A Brief History, By Sean Mirski. https://www.lawfareblog.com/south-china-sea-dispute-brief-history

[8]Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (7 December 2014)

www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml

[9]Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (7 December 2014)

www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml

[10]The Republic of the Philippines v The People’s Republic of China; PCA case nº 2013-19; in the matter of the south china sea arbitration.

Authored by Akanksha | Edited by Prerna Sharma

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