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Arbitral rulling in south china sea
Bachelor of Science in Accountancy (BSA)
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Look for at least 3 reasons why the Arbitral ruling on South China Sea between China and the Philippines was rendered in favor of the Philippines
The Philippines’ claims fell into four general categories. The ruling of the Tribunal on each category of claims is summarized below:
1. The broadest claim was a challenge to China’s “nine-dash line ” covering most of the South China Sea. China has never clarified whether the line represents a claim to the islands within the line and their adjacent waters; a boundary of national sovereignty over all the enclosed waters (including, but not limited by, the land features inside the line); or a “historic” claim of sovereignty or some other set of historic rights to the maritime space within the line. The Philippines sought a declaration that the countries’ respective rights and obligations regarding the waters, seabed, and maritime features of the South China Sea are governed by UNCLOS. As such, China’s claims based on any “historic rights” to waters, seabed, and subsoil within the nine-dash line are contrary to UNCLOS and invalid.
Holding : UNCLOS “comprehensively” governs the parties’ respective rights to maritime areas in the South China Sea. Therefore, to the extent China’s nine-dash line is a claim of “historic rights” to the waters of the South China Sea, it is invalid.
Reasoning : Whatever historic rights China may have had were extinguished when UNCLOS was adopted, to the extent those rights were incompatible with UNCLOS.
2. The Philippines sought a determination as to whether certain land features in the Spratly Islands claimed by both China and the Philippines are properly characterized as islands, rocks, low tide elevations (LTEs), or submerged banks. Under UNCLOS, an “island” generates both a territorial sea of 12 nautical miles and an exclusive economic zone (EEZ) of up to 200 nautical miles, subject to delimitation of a maritime boundary with any other countries’ overlapping territorial seas or EEZs. A “rock” is entitled to a territorial sea no greater than 12 nautical miles, but not an EEZ. LTEs and submerged banks do not generate any such entitlements.
Holding : None of the features in the Spratly Islands generates an EEZ, nor can the Spratly Islands generate an EEZ collectively as a unit. As such, the Tribunal declared certain areas are within the Philippines’ EEZ and not overlapped by any possible Chinese entitlement.
Reasoning : The baseline of analysis is what the features can sustain in their “natural condition” (i., not after construction of artificial islands, installation of desalination plants, etc.). Based on historical evidence, none of the features in the Spratly Islands can sustain either a stable community of people or economic activity that is not dependent on outside resources or purely extractive in nature. The current presence of personnel on the features is dependent on outside support and does not reflect the capacity of the features in their natural condition.
3. The Philippines sought a declaration that China violated UNCLOS by interfering with the Philippines’ rights and freedoms within its EEZs. This includes preventing Philippine fishing around Scarborough Shoal, violating UNCLOS’s environmental protection provisions through
construction and fishing activities that have harmed the marine environment (including at Scarborough Shoal, Second Thomas Shoal, and Mischief Reef), and by dangerously operating law enforcement vessels around Scarborough Shoal.
Holding : China violated the Philippines’ sovereign rights in its EEZ. It did so by interfering with Philippine fishing and hydrocarbon exploration; constructing artificial islands; and failing to prevent Chinese fishermen from fishing in the Philippines’ EEZ. China also interfered with Philippine fishermen’s traditional fishing rights near Scarborough Shoal (without prejudice to the question of sovereignty over Scarborough Shoal). China’s construction of artificial islands at seven features in the Spratly Islands, as well as illegal fishing and harvesting by Chinese nationals, violate UNCLOS obligations to protect the marine environment. Finally, Chinese law enforcement vessels unlawfully created a serious risk of collision by physically obstructing Philippine vessels at Scarborough Shoal in 2012.
Reasoning : This set of holdings depended on the Tribunal finding that certain areas are within the Philippines’ EEZ and not subject to possible overlapping Chinese entitlements. It also depended on finding that activities such as island construction are, in accordance with China’s own public statements , not “military activities” and therefore not excluded from jurisdiction under UNCLOS. Once this was established, the Tribunal considered Chinese activities in the relevant areas and found that China had (a) interfered with Philippine petroleum exploration at Reed Bank, (b) purported to prohibit fishing by Philippine vessels within the Philippine EEZ, (c) protected and failed to prevent Chinese fishermen from fishing within the Philippine EEZ at Mischief Reef and Second Thomas Shoal, and (d) constructed artificial islands/installations at Mischief Reef without the Philippines’ authorization. As for Scarborough Shoal, regardless of who has sovereignty, both Philippine and Chinese fishermen have “traditional fishing rights” at the Shoal that were not extinguished by UNCLOS, and China violated the Philippines’ rights by entirely preventing Filipino fishermen from fishing near Scarborough Shoal after May 2012. In addition, Chinese artificial island construction has caused “severe harm to the coral reef environment” and China has failed to stop its nationals from engaging in “harmful” and “destructive” harvesting and fishing of endangered sea turtles, coral, and giant clams in violation of UNCLOS. Finally, Chinese law enforcement vessels violated maritime safety obligations by creating a serious risk of collision on two occasions in April and May 2012 during the Scarborough Shoal standoff.
4. The Philippines sought a declaration that China’s recent actions, specifically its land reclamation and construction of artificial islands in the Spratly Islands after the arbitration was commenced, violated the obligations UNCLOS places on states to refrain from conduct that “aggravates and extends” a dispute while dispute resolution proceedings are pending.
Holding : China has aggravated and extended the disputes through its dredging, artificial island-building, and construction activities.
Reasoning : While these proceedings were pending, China has built a large island on Mischief Reed, an LTE within the Philippines’ EEZ; caused irreparable harm to the marine ecosystem; and permanently destroyed evidence of the natural condition of the features at issue.
Arbitral rulling in south china sea
Course: Bachelor of Science in Accountancy (BSA)
University: Polytechnic University of the Philippines
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