The South China Sea Arbitration
Relevant UNCLOS background
The Philippines and China are signatories of the United Nations Convention on the Law of the Sea (UNCLOS). The Philippines ratified UNCLOS in 1984 and China in 1996 but China partially opted out in 2006.
The UNCLOS is an international treaty that fixes the marine and maritime activities of signatory countries. For archipelagic countries like the Philippines, the UNCLOS recognized them as having archipelagic waters which may be defined by connecting the outermost islands in the archipelago. The baselines of archipelagic countries are likewise determined by their outermost islands.
The UNCLOS also defined Exclusive Economic Zones (EEZs) which extend 200 nautical miles (NMI) from a country’s baselines.
The UNCLOS has recognized a State’s exclusive rights to resources (fish, petroleum, and minerals) found within its EEZ and that the only instance that another State may be allowed to fish in another State’s EEZ is if the coastal State cannot harvest the full allowable catch.
Dispute between the Philippines and China
In 2012, a standoff in Scarborough Shoal (Bajo De Masinloc) between the Philippines and China happened. The Scarborough Shoal is within the EEZ of the Philippines hence when the Philippine Navy spotted Chinese fishermen in the area, they were promptly warned to vacate. When the Chinese fishermen refused to leave, the Philippine Navy attempted to arrest them but their efforts were blocked by the Chinese Marine Surveillance. This incident caused the Philippines to initiate an arbitration case against China.
China is claiming the Scarborough Shoal based on its Nine-Dash Line which practically covers the entire South China Sea and covering territories like the Scarborough Shoal, Spratly Islands (Kalayaan Group of Islands), etc. which are also being claimed by the Philippines and other nations in the South China Sea. China claims that it has historic rights over areas within its Nine-Dash Line.
The Arbitration Case
Upon the Philippines’ application, a Tribunal was constituted in accordance with the UNCLOS and the Tribunal directed the Permanent Court of Arbitration as the registry of the case.
China refused to participate in accordance with its 2006 declaration of opting out from UNCLOS-defined procedures. However, in its position paper and other official pronouncements published on Chinese media but not submitted to the Tribunal, China made it clear that as far as China is concerned, the Tribunal has no jurisdiction over it.
ISSUE: Whether or not China’s Nine-Dash Line prevails over the EEZ provided for under UNCLOS.
HELD: No. Several Asian States other than China and the Philippines have historic claims over fishing grounds in the South China Sea. However, such historic rights or claims were given up when they ratified the UNCLOS. Thus, China’s claim to historic rights to resources in areas covered by the Philippines’ EEZ is incompatible with the detailed allocation of rights and maritime zones in the UNCLOS. As between China and the Philippines, China has no legal basis to claim historic rights to resources, in excess of the rights provided for by UNCLOS, within the areas in the Nine-Dash Line.
