UNCLOS on Trial in the South China Sea


The latest installation of the Asia Maritime Transparency Initiative covers several recent developments in the region, including China and Japan’s progress towards an East China Sea crisis mechanism, Japan’s new record defense budget, and Taiwan’s decision to delay development work on Itu Aba island, following the revelation that a Chinese vessel was involved in the construction. This issue’s analysis, however, covers subject matter that should be of great interest to Lawfare readers—the ongoing arbitration between the Philippines and China over the South China Sea.

Jay Batongbacal leads off with Arbitration 101, a terrific primer on what has happened so far in the arbitration and what we might expect from the South China Sea case in the coming months. Batongbacal reviews the events that led the Philippines to initiate arbitration in 2013 and explores the legal basis within UNCLOS for it doing so. He explains how the International Tribunal on the Law of the Sea (ITLOS) has proceeded with the case despite China’s refusal to participate and discusses the submissions that have taken place so far, including the Philippines’ Memorial submission in March 2014, and the relevant papers released by China, Vietnam, and the United States in December 2014. He also documents how diplomatic tensions between the parties have ebbed and flowed since arbitration began.

Batongbacal reviews the core of the Philippines’ argument in the case: China’s nine-dash line claim is inconsistent with UNCLOS; China has illegally occupied or controlled eight features in the South China Sea and claims excessive maritime entitlements from them; China has unlawfully claimed or exploited resources within the Philippines’ EEZ and Continental Shelf. He also summarizes China’s counter-arguments in its December 2014 position paper: The arbitration is a dispute over territorial sovereignty over features in the Spratly Islands and Scarborough Shoal, which UNCLOS does not address and the Tribunal cannot solve; Even if the Tribunal could resolve the maritime dispute without dealing with sovereignty, it cannot rule on the Philippines’ claims without first undertaking a maritime delimitation, and the Philippines’ own maritime jurisdiction is still undetermined; China has previously opted out of compulsory dispute settlement under UNCLOS, and the Philippines’ decision to bring the case contravenes previous bilateral negotiation efforts between the two states. Finally, Batongbacal speculates on events that may occur in 2015 and influence the proceedings. He notes that the Philippines now has until March 15 to submit a response to China’s position paper, and that the Tribunal’s ruling on whether or not it has jurisdiction in the case will likely come sometime between mid-August and mid-December 2015.


Read more: http://www.lawfareblog.com/2015/01/unclos-on-trial-in-the-south-china-sea/