Abstract
This chapter addresses China and the Philippines’ legal positions in relation to Mischief Reef, particularly in regard to the United Nations Convention on the Law of the Sea, tasked with addressing maritime disputes. When the Philippines and Vietnam ratified UNCLOS in 1984 and 1994, and China followed suit in 1996, they laid out the extent of their respective maritime areas. Although China remains the primary concern, this chapter also describes how virtually all the disputants have selectively interpreted UNCLOS. The chapter then covers how disagreements over South China Sea features became more complicated from the 1970s onwards with the discovery of potentially substantial energy resources. It shows how activities related to EEZ delimitation and control over perceived maritime spheres significantly increased after the late 1980s, prompting a pre-emptive rush by claimants to control features. Analysis of China’s arguments is provided. The chapter also points to a number of significant flaws in the Philippines’ claims, and explains why both parties are at an impasse. The conclusion addresses the implications of legal developments in the SCS, most notably the landmark South China Sea Arbitration findings in July 2016, which found overwhelmingly in favor of the Philippines, prompting angry responses in word and deed from China.
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Notes
- 1.
For the complete document, see: https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.
- 2.
Batongbacal, “Arbitration 101: Philippines V. China.”
- 3.
Emmers, “Maritime Disputes,” 50; Storey, “Creeping Assertiveness,” 95.
- 4.
Permanent Court of Arbitration, PCA Case No. 2013–19, 256, 631, 633.
- 5.
Permanent Court of Arbitration. PCA Case No. 2013–19.
- 6.
Batongbacal, “Arbitration 101: Philippines V. China”; “Kotani, “The South China Sea Arbitration, No.”
- 7.
Liu and Wong, “China Intensifies Lobbying.”
- 8.
The first UNCLOS conference (UNCLOS I) took place in 1956 and resulted in four separate treaties which entered into force in the 1960s. These were Conventions on: the Territorial Sea and Contiguous Zone; the Continental Shelf; the High Seas; and the Fishing and Conservation of Living Resources of the High Seas. UNCLOS II took place in 1960, but with no results for a range of reasons.
- 9.
Emmers, “Maritime Disputes,” 50; Storey, “Creeping Assertiveness,” 95.
- 10.
For a concise account of Taiwan’s position vis-à-vis the Spratly Islands, see “Sovereignty Over the Spratly Islands,” 2009.
- 11.
Robles, “The South China Sea Arbitration,” 126.
- 12.
Ministry of Foreign Affairs of the People’s Republic of China, “Historical Evidence to Support China’s.”
- 13.
Ibid., “International Recognition.”
- 14.
Ibid., “Basic Stance and Policy.”
- 15.
Ramos-Mrosovsky, “International Law’s Unhelpful Role,” 906–908.
- 16.
Emmers, “Maritime Disputes,” 52; Tiglao et al., “Tis the Season,” 18.
- 17.
Emmers, “Maritime Disputes,” 52.
- 18.
Tiglao et al., “Tis the Season,” 18.
- 19.
See article 14: http://www.asianlii.org/cn/legis/cen/laws/lotprocottsatcz739/.
- 20.
See, for example, https://amti.csis.org/vietnam-expands-another-outpost/; and the Council on Foreign Relations’ Global Conflict Tracker: https://www.cfr.org/interactive/global-conflict-tracker/conflict/territorial-disputes-south-china-sea.
- 21.
Raditio, Understanding China’s Behaviour, 102.
- 22.
Guan, “The South China Sea,” 17–18.
- 23.
For details from earlier decades and a Chinese perspective, see Wu, “Competing Claims.”
- 24.
Foreign Ministry of the People’s Republic of China, “Jurisprudential Evidence.”
- 25.
The “nine-dash line”, was declared “contrary to the Convention” and “without lawful effect” in §1203: B (2) of the South China Sea Arbitration ruling from July 2016.
- 26.
Emmers, “Maritime Disputes,” 51.
- 27.
Wu, “Competing Claims,” 13–22.
- 28.
Foreign Ministry of the People’s Republic of China, “Jurisprudential Evidence.”
- 29.
Ibid.
- 30.
Guan, “The South China Sea,” 3.
- 31.
Foreign Ministry of the People’s Republic of China, “The Tribunal’s Award.”
- 32.
Permanent Court of Arbitration Case No. 2013–19, §730; 290.
- 33.
Ibid., §1006; 403.
- 34.
Ibid., §1009; 403–404.
- 35.
Ibid., §747; 294.
- 36.
Some might consider this a moot point, since international maritime law was not widely codified, accepted and practiced in the West until the later nineteenth century. Prior to that it was primarily limited to national “admiralty” laws.
- 37.
Valencia, et al., “Sharing the Resources,” 22–24.
- 38.
Robles, “The South China Sea Arbitration,” 115.
- 39.
People’s Republic China’s Declaration on the Territorial Sea, Appendix 18, 21.
- 40.
Robles, “The South China Sea Arbitration,” 144.
- 41.
Ibid, 135.
- 42.
Permanent Court of Arbitration Case No. 2013–19, §1005; 402–403.
- 43.
Ibid., §1037; 414; §1038; 415.
- 44.
For more details, see Official Gazette of the Republic of the Philippines, “Republic Act No. 9522.”
- 45.
Ubac, “It’s Official: Aquino Signs Order”; Batongbacal, “Arbitration 101: Philippines V. China”; “Philippines Renames Coast,” South China Morning Post; Heydarian, “The West Philippine Sea?”
- 46.
Emmers, “Maritime Disputes,” 51; Dacanay, “China Builds on Five More”; Storey, “Creeping Assertiveness,” 96; Banlaoi, Security Aspects, 87; Buszynski, “ASEAN’s New Challenges,” 10.
- 47.
Banloi, Security Aspects, 87.
- 48.
Ibid.
- 49.
Wu, “Competing Claims,” 13–22, esp.19.
- 50.
Ibid.
- 51.
Official Gazette of the Republic of the Philippines, “Presidential Decree No. 1596.”
- 52.
Tordesillas, “Bring China’s 9-Dash Line”; Emmers, “Maritime Disputes,” 51.
- 53.
UNCLOS III (United Nations Convention of the Law of the Sea).
- 54.
Permanent Court of Arbitration Case No. 2013–19, passim.
- 55.
Klare, Resource Wars, 122.
- 56.
Hong, UNCLOS and Ocean Dispute, 19.
- 57.
Article 76 stipulates the extent of the continental shelf in detail; see UNCLOS III.
- 58.
Valencia, et al., “Sharing the Resources,” 35.
- 59.
Dzurek, “China Occupies,” 68.
- 60.
For a full account, see Permanent Court of Arbitration Case No. 2013–19.
- 61.
Batongbacal, “Arbitration 101: Philippines V. China.”
- 62.
Valderama, “Speaker Urges Speedy Trial.”
- 63.
Permanent Court of Arbitration Case No. 2013–19, §117; 45.
- 64.
Batongbacal, “Arbitration 101: Philippines V. China.”
- 65.
China would cite this as evidence of the Tribunal’s “biased” composition. See “South China Sea Arbitration Decided”; Callar, “For Having Pinay Wife, Sri Lankan Judge.”
- 66.
Batongbacal, “Arbitration 101: Philippines V. China.”
- 67.
Official Gazette of the Republic of the Philippines, “The Secretary of Foreign Affairs.”
- 68.
Batongbacal, “Arbitration 101: Philippines V. China.”
- 69.
Ibid.
- 70.
Ibid.
- 71.
Ibid.
- 72.
Ibid.
- 73.
Ibid.
- 74.
Batongbacal, “Arbitration 101: Philippines V. China.”
- 75.
Foreign Ministry of the People’s Republic of China, “Position Paper.”
- 76.
China did try to indirectly influence the Tribunal. Robles noted that China had informally been taking part in arbitration and provides examples; Robles, The South China Sea Arbitration, 51–52, 120.
- 77.
Permanent Court of Arbitration, Press Release.
- 78.
Ministry of Foreign Affairs of the People’s Republic of China, “Statement on the Award.”
- 79.
Batongbacal, “Arbitration 101: Philippines V. China.”
- 80.
Permanent Court of Arbitration, Press Release.
- 81.
Government of the People’s Republic of China, “Position Paper.”
- 82.
Government of the People’s Republic of China, “Summary of the Position Paper.”
- 83.
The Tribunal found that the multilateral and legally binding 1976 Treaty of Amity and Co-operation (TAC, Chapter IV, Articles 13 to 17) of which China and the Philippines are parties, could not preclude submission of the dispute to arbitration or recourse by any party to compulsory dispute settlement; Robles, The South China Sea Arbitration, 27, 28. For China’s statement on bilateral negotiations, see https://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1370476.htm.
- 84.
These joint statements are dated August 10, 1995, March 23, 1999, May 16, 2000, September 4, 2004, and September 1, 2011.
- 85.
Robles, The South China Sea Arbitration, 23, 26.
- 86.
Batongbacal, “Arbitration 101: Philippines V. China.”
- 87.
This declared the Tribunal could decide on a number of jurisdictional issues and deferred other issues for further consideration. See Kotani, “The South China Sea Arbitration, No.” See also Permanent Court of Arbitration Case No. 2013–19, “Award on Jurisdiction and Admissibility.”
- 88.
See Permanent Court of Arbitration Case No. 2013–19.
- 89.
In the PHL’s Submission No.12, a declaration was sought stating the PRC’s island building activities had breached UNCLOS’ Articles 60 (“Artificial Islands, Installations and Structures in the Exclusive Economic Zone”) and 80 (“Artificial Islands, Installations and Structures on the continental shelf”) because Mischief Reef is a low-tide elevation (LTE) within the EEZ and continental shelf (CS) of the PHL and these activities had occurred without permission from the Philippines.
- 90.
Permanent Court of Arbitration, Press Release.
- 91.
Ibid.
- 92.
For damage caused to Mischief Reef and its environs, see Chapter 6.
- 93.
Permanent Court of Arbitration, Press Release.
- 94.
For full details of what the articles cover, see https://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf.
- 95.
Permanent Court of Arbitration, Press Release.
- 96.
Robles, “The South China Sea Arbitration,” 178–186.
- 97.
Permanent Court of Arbitration Case No. 2013–19, §860; 335; §953, 955; 380–381. See also The Ferse Report. https://www.pcacases.com/web/sendAttach/1809.
- 98.
Permanent Court of Arbitration Case No. 2013–19, §1203; 476.
- 99.
UNCLOS Article 298; see https://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf.
- 100.
Foreign Ministry of the People’s Republic of China, Statement on the Award.
- 101.
Chinese Society of International Law, “The Tribunal’s Award.”
- 102.
Official Gazette of the Government of the Philippines, “DFA: Guide Q & A.”
- 103.
Ibid., “State of Nation Address,” 64–65.
- 104.
Ibid., 61–62.
- 105.
Chinese Society of International Law, “The Tribunal’s Award.”
- 106.
Ibid., 13, 218, 219, 382, 383.
- 107.
I.C.J. Reports 2001, Qatar v. Bahrain, §205; 101–102.
- 108.
Chinese Society of International Law, 383; 671–672.
- 109.
Ibid., 419.
- 110.
Ibid., 475, 511, 519.
- 111.
Ibid., 512–514. The authors also accused the PHL of gravely violating the One China Principle and infringing China’s sovereignty and territorial integrity in their statements regarding the Taiwan-administered but PRC-claimed Itu Aba (Taiping Dao), the largest island in the Spratlys.
- 112.
Foreign Ministry of the People’s Republic of China, “Position Paper of the Government.”
- 113.
Chinese Society of International Law, “The South China Sea Arbitration Awards,” 661.
- 114.
Ibid.
- 115.
“|Latin for ‘something said in passing.’ A comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in future litigation.” https://www.law.cornell.edu/wex/obiter_dictum.
- 116.
Chinese Society of International Law, 518.
- 117.
Ibid., 532–538.
- 118.
Ibid., 551.
- 119.
Yoshikawa, “The US-Japan–China Mistrust Spiral.”
- 120.
Chinese Society of International Law, 551.
- 121.
Ibid., 557.
- 122.
Ibid., 396.
- 123.
Ibid., 558, 609, 658, 659.
- 124.
Ibid., 610.
- 125.
The PRC’s criticisms of the Tribunal (well in advance of July 2016), included bias selection from the Japanese judge who had helped to select four of the Tribunal’s five members in 2013; Johnson, “Beijing turns on Japanese judge.”
- 126.
Chinese Society of International Law, 647–648.
- 127.
Guilfoyle, “Philippines v China: First Thoughts.”
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Fox, S. (2021). The Perspective of Maritime Law. In: Mischief Reef. Palgrave Macmillan, Singapore. https://doi.org/10.1007/978-981-16-3884-8_2
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