KAS SCS Way Forward Post Arbitration

The Korean Journal of International and Comparative Law, 2018

The South China Sea Arbitral Tribunal award was an overwhelming legal and moral victory for the Philippines. The arbitral tribunal categorically declared that China’s nine-dash line claim is incompatible with the UN Convention on the Law of the Sea. However, China’s defiance of the ruling and refusal to honor and implement the award pose a serious challenge to Manila’s victory. In addition, the astonishing shift in Philippine foreign policy direction, alongside the change in government, flouts the arbitral award and undermines previous State policies assertive of Philippine maritime and territorial claims in the South China Sea. The current direction of Philippine-China relations under Philippine President Rodrigo Duterte has demonstrated positive signs of improvement compared with acrimonious bilateral relations pursued by the previous Aquino administration. The arbitral award has largely been set aside in the government’s effort to restore amicable economic and diplomatic relation...

Asian Politics & Policy, 2017

, an arbitration Tribunal registered under the Permanent Court of Arbitration (PCA) in The Hague handed down its unanimous award in the case filed by the Philippines against China concerning the dispute between the two countries over territory and maritime jurisdictions in the South China Sea (SCS). Though the Tribunal's decision did not include aspects related to sovereignty and boundary delimitation between the parties, it rendered final and binding judgments in favor of the Philippines on a host of critical issues as provided by the United Nations Convention on the Law of the Sea (UNCLOS). According to the press statement it issued, there is "no legal basis for China to claim historic rights to resources within the sea areas falling within the 'nine-dash line.'" Second, it also ruled that certain sea areas in the SCS fall within the exclusive economic zone (EEZ) of the Philippines and none of the features in the Spratly Islands could generate its own EEZ. Third, it observed that China has caused serious damage to the marine environment and "violated its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened, or endangered species." Finally, the Tribunal found that China engaged in actions that aggravated the dispute, including "large-scale land reclamation and construction of artificial islands." The arbitral award was seen as historic by many experts in international law and will form a significant part of jurisprudence for years to come. The critical question, however, concerns how to implement the PCA's ruling given the lack of clear enforcement mechanisms and China's continued recalcitrance and

Center for International Maritime Security (CIMSEC) , 2015

Despite Beijing’s refusal to take part in the proceedings, on 29 October 2015 the Court of Permanent Arbitration (PCA) issued a ruling on jurisdiction and admissibility of the UNCLOS arbitration case launched by the Philippines against China. The Court unanimously decided that it had jurisdiction concerning seven of the fifteen claims put forward by Manila, with a decision on a further seven to be reached when considering their merits. The ruling by the PAC is thus a major victory for Manila and maritime democracies, since China’s view that the Philippines had promised to pursue only negotiations, and her assertion that no decision could be taken on maritime zones until delimitation had taken place, were rejected. While the decision on the merits of the case will have to wait until at least next year, and a ruling in favor of Manila does not guarantee in and by itself that Beijing will comply, this is nevertheless a major step forward for the notion that it is right plus might and not just might in isolation, which will determine the future of this vital sea. The paper looks at the court decision, China's reaction, and Taiwan's position.

The Asia-Pacific Journal, Vol. 13, Issue 42, No. 2,, 2015

This summer, the Permanent Court of Arbitration (PAC) held the first oral hearings in the case brought by the Philippines against China concerning the South China Sea. Before considering any substantive issues, the PAC has to decide whether it has jurisdiction to issue a ruling. Earlier, the closing weeks of 2014 had seen three significant developments, with Hanoi making a submission to the PAC, Beijing publishing a position paper (while not submitting it to the Court), and the United States issuing a position paper of its own. We can also mention the continued interest in the South China Sea by other countries, including India and Russia. Taken together, it means that the time may have arrived to take stock of the arbitration case, updating our previous summer of 2013 piece “Manila, Beijing, and UNCLOS: A Test Case?". At stake is not only this arbitration case, or even the entire South China Sea, but the role of international law in contributing to peaceful solutions to territorial conflicts, specifically whether it can help accommodate changes in relative power without recourse to military conflict.

2014

This paper will examine the arbitration case filed by the Philippines against China over the West Philippine Sea on 22 January 2013. The first part, and by way of introduction, will provide a concise summary of the competing territorial and maritime jurisdictional claims over the South China Sea highlighting recent developments. The second part will discuss the system of dispute settlement under the 1982 United Nations Convention on the Law of the Sea as well as relevant international jurisprudence and State practice. The third part will examine the arbitration case in greater detail discussing its factual antecedents and the specific reliefs sought by the Philippines. In the final part, the paper will conclude with an evaluation and analysis of the arbitration case in the context of its potential implications to the management of conflict and resolution of the sovereignty disputes in the South China Sea.

Asian Politics & Policy, 2018

On 12 July 2016, the Arbitral Tribunal formed under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) issued its award on the case brought by the Philippines against China over maritime claims in the South China Sea. The landmark victory categorically declared that China's nine-dash line claim is incompatible with the UNCLOS. The award was also an authoritative interpretation of various important issues relating to UNCLOS including the legal status of maritime features, historic rights, and the duty to preserve the marine environment. However, despite the final and binding nature of the arbitral ruling, China continues to reject the ruling. The shift in Philippine foreign policy under the Duterte administration has led to setting aside the ruling in order to restore amicable diplomatic and economic relations with China. This Special Issue of Asian Politics & Policy explores and revisits the South China Sea arbitral award from a multi-faceted perspective, focusing on challenges, implications, and post-arbitration strategies.

East Asian states infrequently seek peaceful dispute resolution through binding methods of international law. What is puzzling is why states seek one particular dispute resolution method or another, and in the specific case of the Philippines, why the government chose to pursue arbitration against China regarding the maritime boundaries of the disputed Spratly Islands, knowing that China would not agree to participate. In this article, we theorize that the Philippine government chose to pursue arbitration against China for three strategic reasons: 1) to counterbalance China’s military actions in the South China Sea, 2) because of the strong benefits to the state resulting from using arbitration, and 3) the probability of winning the case using arbitration was perceived by the Philippines as strong. To test our hypotheses, we use interviews and process tracing, through which we find evidence for our suppositions, primarily the last hypothesis.

On 12 July 2016, the Permanent Court of Arbitration (PCA) under the United Nations Convention on the Law of the Sea (UNCLOS) ruled in favour of the Philippines in 14 of its 15 submissions against China's expansive territorial claims in the South China Sea. The PCA declared that China's claims – defined by the nine-dash line – violate international law. The arbitral tribunal also asserted that Chinese reclamation and construction projects in the land features of the disputed waters infringe on Philippines' territorial rights. The ruling likewise found China guilty of destroying the maritime environment by building artificial islands and illegally preventing Filipinos from fishing and conducting oil exploration activities in the area. The PCA award to the Philippines illustrates the efficient and impartial dispute resolution mechanism of the UNCLOS as well as the short-term triumph of the Philippines' lawfare over China's realpolitik approach in the dispute. Unfortunately, the Duterte Administration has shelved the PCA ruling saying that enforcing it has a minimal chance of success. Instead, he has adopted an appeasement policy in exchange for China's goodwill and economic largess. The article concludes that the Duterte Administration's course of action lends credence to former State Councilor Dai Bingguo's statement that the PCA award to the Philippines is nothing more than a " piece of trash paper " .

CIMSEC Blog, 2016

This is the final installment in a four-part series devoted to China’s 7 December 2014 document, putting forward her views on the Philippines’ international arbitration case on the South China Sea. Although Beijing is refusing to take part in the proceedings, as confirmed following the Court’s 29 October 2015 ruling on jurisdiction, by issuing this document, and communicating in other ways with the Court, the PRC has failed to completely stay aloof from the case. It is thus interesting to analyze China’s narrative as laid down in that document.

CIMSEC Blog, 2015

This is the second installment in a four-part series devoted to China’s 7 December 2014 document, putting forward her views on the Philippines’ international arbitration case on the South China Sea. Although Beijing is refusing to take part in the proceedings, as confirmed following the Court’s 29 October 2015 ruling on jurisdiction, by issuing this document, and communicating in other ways with the Court, the PRC has failed to completely stay aloof from the case. It is thus interesting to analyze China’s narrative as laid down in that document.