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                                                                                                                           Asean Affairs  29 January 2013  

Manila Begins Legal Proceedings over South China Sea Claims

By Gregory Poling

January 24, 2013

On January 22, the Philippines fired a legal shot across China’s bow with Secretary of State Albert del Rosario’s announcement that Manila had submitted a motion to the United Nations requesting that China’s South China Sea claims be brought before an arbitral tribunal. China has consistently refused to negotiate its claims in the South China Sea, which overlap with those of the Philippines, Malaysia, Brunei, Vietnam, and Taiwan, in multilateral settings. China’s first official reaction to del Rosario’s announcement was unsurprising; it decried the decision and reiterated its “indisputable sovereignty” over the islands and adjacent waters of the South China Sea.

The immediate reaction from many other observers to the Philippines’ decision to seek arbitration was dismissive. Given Beijing’s objections to multilateralizing the dispute and the complicated nature of the disputes, a common assumption is that the Philippines has embarked on little more than a publicity stunt. But this is inaccurate. The Philippines’ case for arbitration is sound and it has the potential to fundamentally alter the situation in the South China Sea.

Q1: Why did the Philippines choose to seek arbitration?
A1: Last year was probably the most damaging to the Philippines’ position in the South China Sea dispute since China occupied Mischief Reef in 1995 over Philippine objections. After three years of steadily escalating the aggression with which it pursued its claims, Chinese vessels forced a months-long standoff at Scarborough Shoal, inside the Philippines’ exclusive economic zone (EEZ). In the end, the Philippines simply lacked the muscle to force the Chinese to back down, and Scarborough Shoal is now in China’s controlled.

The Philippines then did the most logical thing it could—it turned to its fellow members of the Association of Southeast Asian Nations (ASEAN) looking for support and condemnation of China’s aggression. At the ASEAN Ministerial Meeting in July, ASEAN chair Cambodia blocked the release of a statement condemning Beijing for the Scarborough incident. The support from ASEAN was slightly stronger at the ASEAN Summit in November but only after Philippine president Benigno Aquino publicly berated Cambodian prime minister Hun Sen for claiming that the ASEAN members had agreed not to internationalize the dispute.

After a year of seeing its own relative weakness, a disappointing lack of support from ASEAN, and continued Chinese intransigence, the Philippines decided to internationalize the South China Sea dispute in a big way. The Philippines has been seriously examining ways to bring legal action against China since at least last summer. It has now found a way to do so.

Q2: What is the Philippine case?
A2: The Philippines has been forced to take a necessarily limited legal track. China has felt more or less secure in its immunity from the binding dispute settlement mechanisms covered by the UN Convention on the Law of the Sea (UNCLOS), to which it and all the other South China Sea claimants are party. This is because Beijing opted in 2006 to take an “out” offered by article 298 of UNCLOS, which allows signatories to exempt themselves from mandatory settlement of several important types of disputes. The most significant exemption in this case is to the resolution of disputes over overlapping maritime boundaries, including territorial seas, EEZs, and continental shelves.

However, the Philippines’ motion for arbitration is careful not to request the delimitation of maritime boundaries. Nor does it ask for the tribunal to resolve the overlapping claims to individual islands in the South China Sea—an issue which is outside the scope of UNCLOS to begin with. Instead, the core of its case rests on two fundamental questions about definition. First, it argues that China’s “nine-dash line” is not supported by UNCLOS, and therefore the only valid maritime claims in the South China Sea are to the territorial seas, EEZs, and continental shelves adjacent to coastlines and islands. This is the only definition of such maritime claims allowed under UNCLOS.

The Philippines’ second major request is for the tribunal to rule on whether certain “islands” occupied by China are islands at all. This is critically important because under UNCLOS only features which are above water at high tide are considered islands capable of generating a 12 nautical mile territorial sea. Any features not above water at high tide are not islands, and belong to whichever country owns the continental shelf on which they sit, or to no one if they lie beyond any continental shelf. The Philippines asserts that Mischief Reef, McKennan Reef, Gavin Reef, and Subi Reef fall under this category.

In addition to the low-tide elevations which the Philippines asks the tribunal to affirm are not islands, it also argues that certain high-tide features on which China has built structures are entitled to only a territorial sea, not a 200 nautical mile EEZ or continental shelf. This rests upon UNCLOS rules stating that only islands capable of supporting human habitation and/or independent economic activity generate EEZs of their own. The Philippines lists Scarborough Shoal, Johnson South Reef, Cuarteron Reef, and Fiery Cross Reef as features occupied by China that do not meet this requirement.

In the case of all eight features listed, both geography and legal precedent make the Philippines’ case close to air-tight.

Q3: What comes next?
A3: In the formation of an arbitral tribunal under UNCLOS, the next step is the selection of judges. The tribunal will include a panel of five—one selected by each party to the dispute and three from third countries upon which the disputants will agree. The Philippines put forward the name of its judge and must now wait for China to do the same. However, this does not offer an opportunity for China to throw a wrench into the process. If it does not select an arbitrator in 30 days, then the Philippines may ask that the president of the International Tribunal on the Law of the Sea do so. The same applies if China does select a judge but then cannot reach agreement on the other three within 60 days.

Once the five arbitrators are selected, they will determine whether or not the case falls within their jurisdiction. This is the point at which the arbitration procedures could end before they really begin. However, the Philippines has intentionally crafted a subtle and strictly limited case to ensure that the tribunal will choose to accept it. Nothing is certain, but a decision not to take up the case seems unlikely. The greatest pitfall for the Philippines at this stage would be if the judges give undue weight to the fact that China claims far more features than those the Philippines lists in its case. They could argue that the possibility exists that one of the other islands, such as the much larger Itu Aba which is currently occupied by Taiwan, could in theory warrant a continental shelf upon which China could rest its claim to some low-tide elevations. This could result in the arbitrators’ refusal to take up all or part of the Philippines’ case.

Assuming the judges take up the case, Secretary del Rosario predicted that it would last three to four years, before the tribunal will issue its “award”, or decision. The awards of an arbitral tribunal are declared by UNCLOS to be binding on both parties of the dispute. It is also important to note that China cannot obstruct the proceedings of the tribunal. Appendix VII of UNCLOS, which covers the workings of an arbitral tribunal, is explicit that the refusal of either party to participate will neither prevent nor prejudice the decision of the tribunal.

The big question will be whether or not Beijing follows the “binding” decision of the tribunal; there are no sanctions or repercussions enumerated by UNCLOS should it fail to do so and the notion of outside interference to force it to abide by the findings is nearly inconceivable. That would be a crippling blow to China’s image. The argument constantly put forth from the Chinese, that a rising China will be a responsible player in the global order and a protector of the global commons, would be undone overnight. Recognizing that, China might well deem the price of refusal too high and abide by the tribunal’s decision.

Gregory Poling is a research associate with the Sumitro Chair for Southeast Asia Studies and the Pacific Partners Initiative at the Center for Strategic and International Studies (CSIS) in Washington, D.C.

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AseanAffairs   04 January 2011
By David Swartzentruber      

It is commonplace in journalism to write two types of articles at the transition point between the year that has passed and the New Year. As this writer qualifies as an “old hand” in observing Thailand with a track record dating back 14 years, it is time take a shot at what may unfold in Thailand in 2011.

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