The Republic of the Philippines v. The People's Republic of China | |
---|---|
![]() Registered with the
Permanent Court of Arbitration | |
Court | An arbitral tribunal constituted under Annex VII to the 1982 United Nations Convention on Law of the Sea (UNCLOS) |
Full case name | An Arbitration before an arbitral tribunal constituted under Annex VII to the 1982 United Nations Convention on Law of the Sea between the Republic of the Philippines and the People's Republic of China |
Decided | 12 July 2016 |
Citation | PCA Case No. 2013-19 |
Transcript | https://pca-cpa.org/en/cases/7/ |
Ruling | |
| |
Court membership | |
Judges sitting | Presiding Arbitrator: Thomas A. Mensah Members: Jean-Pierre Cot Rüdiger Wolfrum Alfred H. Soons Stanisław Pawlak |
The South China Sea Arbitration (Philippines v. China, PCA case number 2013–19) [1] was an arbitration case brought by the Republic of the Philippines against the People's Republic of China (PRC) under Annex VII (subject to Part XV) of the United Nations Convention on the Law of the Sea (UNCLOS, ratified by the Philippines in 1984, by the PRC in 1996, opted out from Section 2 of Part XV by China in 2006 [2]) concerning certain issues in the South China Sea, including the nine-dash line introduced by the mainland-based Republic of China since as early as 1947. [3] [4] [5] A tribunal of arbitrators appointed the Permanent Court of Arbitration (PCA) as the registry for the proceedings. [6]
On 19 February 2013, China declared that it would not participate in the arbitration. [7] On 7 December 2014, it published a white paper to elaborate its position that, among other points, the tribunal lacks jurisdiction. [8] [9] In accordance with Article 3 of Annex VII of UNCLOS, the Philippines appointed 1 of the 5 arbitrators, while China did not appoint any. [11] On 29 October 2015, the tribunal concluded that it had jurisdiction to consider seven of the Philippines' submissions, subject to certain conditions, and postponed the consideration of its jurisdiction on the other eight submissions to the merits phase. [12] [13] [14]
On 12 July 2016, the arbitral tribunal ruled in favor of the Philippines on most of its submissions. It clarified that while it would not "rule on any question of sovereignty ... and would not delimit any maritime boundary", China's historic rights claims over maritime areas (as opposed to land masses and territorial waters) within the "nine-dash line" have no lawful effect unless entitled to under UNCLOS. [15] [16] [17] [18] China has rejected the ruling, as has Taiwan. [19] [20] Eight governments have called for the ruling to be respected, 35 issued generally positive statements noting the ruling but not called for compliance, and eight rejected it. [21] The United Nations does not hold any position on the case or on the disputed claims. [22]
The dispute has been affected by the fact that after Japan renounced all claims to the Spratly Islands and other conquered islands and territories in the Treaty of San Francisco. Neither the Republic of China nor the People's Republic of China had been invited to the treaty negotiations, and the treaty did not designate successor states. [23] on 15 August, the Chinese government issued the Declaration on the Draft Peace Treaty with Japan by the US and the UK and on the San Francisco Conference by the then Foreign Minister Zhou Enlai, reiterating China's sovereignty over the archipelagos in the South China Sea, including the Spratly Islands, and protesting about the absence of any provisions in the draft on who shall take over the South China Sea islands following Japan's renouncement of all rights, title and claim to them. It reiterated that "the Chinese government of the day had taken over those islands" and that the PRC's rightful sovereignty "shall remain intact". [24]
On 28 April 1952, the United States presided over the signing of the Treaty of Peace between Japan and the Republic of China. Article 2 of the document provided that "It is recognized that under Article 2 of the Treaty of Peace which Japan signed at the city of San Francisco on 8 September 1951 (hereinafter referred to as the San Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the Paracel Islands." [24]
The Philippines bases its claim on its geographical proximity to the Spratly Islands. [25]
In May 1956, the dispute escalated after Filipino national Tomas Cloma and his followers settled on the islands and declared the territory as "Freedomland", now known as Kalayaan for himself and later requested to make the territory a protectorate of the Philippines. Tomas Cloma even stole China (ROC)'s national flag from the Taiping Island. In July 1956, he apologised officially for his act and he surrendered the flag he stole to China's embassy in Manila. On 2 October 1956, he wrote a letter and ensured he would not make further training voyages or landings in the territorial waters of China (ROC). [26]
Philippine troops were sent to three of the islands in 1968, when the Philippines were under President Ferdinand Marcos. In the 1970s, some countries began to occupy islands and reefs in the Spratlys. The Spratlys were placed under the jurisdiction of the province of Palawan in 1978.
The PRC claims it is entitled to the Paracel and Spratly Islands because they were allegedly seen as integral parts of China under the Ming dynasty. [25] China and Taiwan have these same territorial claims. [25] The Republic of China (Taiwan) has controlled the largest island – Taiping Island – in the group since 1946.
Vietnam states that the islands have belonged to it since the 17th century, using historical documents of ownership as evidence. [25] Hanoi began to occupy the westernmost islands during this period. [25]
In the early 1970s, Malaysia joined the dispute by claiming the islands nearest to it. [27]
Brunei also extended its exclusive economic zone, claiming Louisa Reef. [27]
Article 298 of Section 3 of Part XV of the Convention provides optional exceptions to the applicability of compulsory procedures provided in Section 2. China made a declaration in 2006 in accordance with this provision of the Convention purporting not to accept any of the procedures provided for in section 2 of Part XV of the convention. Many countries including the United Kingdom, Australia, Italy, France, Canada, and Spain had made similar declarations to reject any of the procedures provided for in sections 2 of Part XV of the convention with respect to the different categories of disputes. [28] However, the Tribunal held that this dispute did not fall within the exceptions provided in Article 298, and was therefore admissible. [17]
The arbitration case involved the Philippines and China but only the Philippines participated in the arbitration.
The Philippines contended that the "nine-dotted line" claim by China is invalid because it violates the UNCLOS agreements about exclusive economic zones and territorial seas. [29] It says that because most of the features in the South China Sea, such as most of the Spratly Islands, cannot sustain life, they cannot be given their own continental shelf as defined in the convention. [30]
China refused to participate in the arbitration, stating that several treaties with the Philippines stipulate that bilateral negotiations be used to resolve border disputes. It also accuses the Philippines of violating the voluntary Declaration on the Conduct of Parties in the South China Sea, made in 2002 between ASEAN and China, which also stipulated bilateral negotiations as the means of resolving border and other disputes. [31] [32] [33] China issued a position paper in December 2014 arguing the dispute was not subject to arbitration because it was ultimately a matter of sovereignty, not exploitation rights. [34] China also cites the fact that it excluded itself from the compulsory arbitration provisions when it ratified UNCLOS. [35] Its refusal, did not prevent the arbitral tribunal from proceeding with the case. [36] In the official and binding international "Position Paper" sent by China to the court, it recognized the 1898 Treaty of Paris and the 1900 Treaty of Washington. Under the said 1900 Treaty of Washington which was a supplement to the 1898 Treaty of Paris, Scarborough Shoal and the Spratlys were recognized as part of the territory of the Philippines. China also reiterated that it recognizes the treaty between the United States and the United Kingdom in 1930, where both nations reiterated the recognition of Philippine territory, which included Scarborough Shoal and the Spratlys. The move came as a surprise to the Filipino delegation, where the Philippines' international law expert Antonio Carpio stated that China likely did not read the full text of the treaties it has reiterated. [37] After the award ruling, the PRC issued a statement rejecting it as 'null' and having decided not to abide by the arbitral tribunal's decision, said it will "ignore the ruling". [38]
Taiwan, officially the Republic of China, stated that the South China Sea islands were first discovered, named, and used by Chinese people. [39] [40] It currently administers Taiping Island or Itu Aba, the largest of the Spratly Islands, but was neither consulted nor invited to the arbitration. Taipei argues that Taiping can sustain human habitation with its freshwater wells and produce, and is thus an island under UNCLOS. It had invited the Philippines and five arbitrators to visit Taiping; the Philippines rejected the invitation, and there was no response from the arbitrators. [41] According to Ian Storey, a regional expert at the ISEAS–Yusof Ishak Institute, for decades, the common understanding among scholars was that "Itu Aba is the only island in the Spratlys". [42] After the tribunal downgraded Itu Aba to a rock, Taiwan rejected the ruling, saying it is "not legally binding on the ROC". It pointed out that the status of Itu Aba was not a point of contention raised by the Philippines, who had brought the case, but was opened up by the tribunal on its own initiative. [43] [44] Lawmakers from the ruling KMT and the opposition DPP also joined in to express their disapprovals. Taiwan's Fisheries Agency declared that Taiwanese fishermen could continue to operate in the waters surrounding Taiping. The coast guard had already deployed a vessel to the area, and a naval frigate mission was pushed ahead of schedule in response to the ruling. [45] [46] [47]
On 11 December 2014, Vietnam filed a statement to the tribunal which put forward three points: 1) Vietnam supports the filing of this case by the Philippines, 2) it rejects China's "nine-dashed line", and 3) it asks the arbitral tribunal to take note of Vietnam's claims on certain islands such as the Paracels. [48]
Brunei sent its own UNCLOS claim through a preliminary submission prior to the arbitration. [49] In May 2009, Malaysia and Vietnam, as well as Vietnam alone, filed claims to the International Tribunal for the Law of the Sea with regard to the islands.[ clarification needed] This was in relation to extending their claimed continental shelves and Exclusive Economic Zones. The People's Republic of China rejected the claims since those violate the "nine-dotted line". The Philippines challenged the Malaysian claim stating that the claims overlap with the North Borneo dispute. [50]
Indonesia made a comment on China's claim by saying that the features are rocks and cannot sustain life, effectively calling the Chinese claim invalid. The Philippines echoed Indonesia's claims, further stating that the islands belong to them through geographic proximity. [50] [51]
The arbitral tribunal convened a Hearing on Jurisdiction and Admissibility on 7 to 13 July 2015, rendered an Award on Jurisdiction and Admissibility on 29 October 2015, convened a hearing on the merits from 24 to 30 November 2015, and issued a unanimous award on 12 July 2016. [17]
On 7 July 2015, case hearings began with the Philippines asking the arbitral tribunal to invalidate China's claims. The hearings were also attended by observers from Indonesia, Japan, Malaysia, Thailand and Vietnam. [13] The case has been compared to Nicaragua v. United States due to similarities of the parties involved such as that a developing country is challenging a permanent member of the United Nations Security Council in an arbitral tribunal. [52]
On 29 October 2015, the tribunal ruled that it had the power to hear the case. It agreed to take up seven of the 15 submissions made by Manila, in particular whether Scarborough Shoal and low-tide areas like Mischief Reef can be considered islands. It set aside seven more pointed claims mainly accusing Beijing of acting unlawfully to be considered at the next hearing on the case's merits. It also told Manila to narrow down the scope of its final request that the judges order that "China shall desist from further unlawful claims and activities." [14]
The tribunal scheduled the hearing on merits of the case from 24 to 30 November 2015. [53]
On 29 October 2015, the PCA published the award by the arbitral tribunal on Jurisdiction and Admissibility [54] for the case. The tribunal found that it has jurisdiction to consider the following seven Philippines' Submissions. (Each number is the Philippines' Submissions number.) The tribunal reserved consideration of its jurisdiction to rule on Nos. 1, 2, 5, 8, 9, 12, and 14.
The tribunal stated in the award that there are continuing disputes in all of the 15 submissions from the Philippines, [54] but for submissions such as No.3, No.4, No.6 and No.7, no known claims from the Philippines prior to the initiation of this arbitration exist, and that China was not aware of (nor had previously opposed) such claims prior to the initiation of arbitration. For Submissions No.8 to No.14, the tribunal held the view that the lawfulness of China's maritime activities in the South China Sea is not related to sovereignty.
On 12 July 2016, the PCA published the award by the arbitral tribunal which it states is final and binding as set out in the convention. [38] [17] Conclusions expressed in the award included the following:
There are countries and multinational bodies that have expressed support or opposition to the Philippines' move to take the South China Sea dispute to the Permanent Court of Arbitration. These entities however may not necessarily support either sides when it comes to the ownership of the disputed area affected by the case.
Compiled from the Center for Strategic and International Studies, [83] the Council of the EU and the European Council, [84] and the Philippine Daily Inquirer [85]
Within the Association of Southeast Asian Nations (ASEAN), Malaysia and Vietnam, who have territorial claims in the South China Sea, as well as Australia, Indonesia, Japan, Singapore and Thailand, sent observers to the proceedings. [106] [107]
In June 2016, before the tribunal issued its ruling, Malaysia's foreign ministry released what it said was a joint statement of ASEAN expressing "serious concern" over land reclamation activities in the South China Sea. Within hours of issuing the statement, Malaysia announced that ASEAN wanted the statement retracted for "urgent amendments". Malaysian Foreign Ministry's Secretary General Othman Hashim later claimed that ASEAN's foreign ministers had "unanimously agreed" to the statement at a meeting, and that "Subsequent developments pertaining to the media statement took place after the departure of the ASEAN foreign ministers". [108]
Cambodian Prime Minister Hun Sen later gave a speech condemning reports that Cambodia had had the statement retracted in order to please China, saying, "Cambodia will not be a puppet of anyone on the South China Sea issue." [109] Hun Sen suggested the case was a "political conspiracy" and that the ruling "will not be fair", [110] but also said that "Cambodia will just choose to stay neutral on this issue." [109] A few days after Hun Sen's speech, the Cambodian People's Party, which Hun Sen heads, issued a statement backing him. According to the statement, "The CPP would like to reject unjust allegations that Cambodia has destroyed the issuing of a joint statement from ASEAN on the issue of the South China Sea both in Kunming recently and in 2012". [111]
On 9 July, shortly before the tribunal issued its ruling, Cambodia's foreign ministry issued a statement reiterating that Cambodia would not join any ASEAN statement on the ruling. [112]
Australia has not sought to take a public position on the matter other than to state that the ruling of the tribunal should be respected. [113] [114] However, Australia has recognised the right of the Philippines to seek arbitration. [87]
European Union encourages all parties to seek peaceful solutions, through dialogue and cooperation, in accordance with international law – in particular with the UN Convention on the Law of the Sea. [115] A foreign affairs of the EU issued a statement saying "Whilst not taking a position on claims, the EU is committed to a maritime order based upon the principles of international law, in particular as reflected in the United Nations Convention on the law of the Sea (UNCLOS),". [116] The EU later stressed that China should respect the ruling from the Hague. [117]
The Group of 7 (Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States as well as a representation from the European Union) made a statement that the bloc should issue a "clear signal" to China's overlapping claims. [118] European Council President Donald Tusk said on the sidelines of a summit in Ise-Shima that the bloc should take a "clear and tough stance" on China's contested maritime claims. [119]
In August 2015, a junior Minister of State of India, V K Singh, told that territorial disputes should be resolved through peaceful means as was done by India and Bangladesh using the mechanisms provided by the UNCLOS, and parties should abide by the Declaration of the Conduct of Parties in the South China Sea. [120] In October 2015, the Foreign Minister of India Sushma Swaraj stated in a joint statement that India supports a peaceful settlement of the dispute. Peaceful means should be used according to the principles of international law, including the UNCLOS. In April 2016, Foreign Minister Sushma Swaraj stated in a communique that Russia, India and China agreed to maintain legal order of seas based on international law, including the UNCLOS, and all related disputes should be addressed through negotiations and agreements between the parties concerned. [121]
The foreign secretary of New Zealand stated in a speech that New Zealand supports the right to seek arbitration on South China Sea disputes. [98]
NATO General Petr Pavel said NATO has "no legal platform" to intervene militarily in the South China Sea territorial disputes, and NATO will not interfere in other region's issues. NATO supports any regional solutions based on political and diplomatic negotiations, "rules-based international system" and peaceful means for resolving discord. [122] [91]
On 14 April 2016, the Fijian government issued a statement to correct a previous media release by China and stated that the Fijian government did not support China's proposition. [123]
In May 2016, Chinese Foreign Ministry spokesperson Hua Chunying said that more than 40 countries had expressed their support for China's position. [124] One 19 May 2016, Foreign Ministry spokesperson Hong Lei stated that Brunei, Mozambique, and Slovenia supported China's stance for negotiations to resolve South China Sea issues. [125] In July 2016, it was reported that more than 70 countries had called for the South China Sea dispute to be resolved through negotiations, not arbitration, although American media and think tanks have expressed doubt, with the Center for Strategic and International Studies (CSIS) via its Asia Maritime Transparency Initiative (AMTI) putting the number at ten. [126] [127]
In a statement of the Shanghai Cooperation Organisation Secretary-General Rashid Olimov on South China Sea issue, all SCO countries agreed and supported China's efforts made to safeguard peace and stability in the South China Sea. Directly concerned states should resolve disputes through negotiation and consultation in accordance with all bilateral treaties and the Declaration on the Conduct of Parties in the South China Sea (DOC), the statement said. It urged to respect the right of every sovereign state to decide by itself the dispute resolution methods, and strongly opposed outsiders' intervention into the South China Sea issue, as well as the attempt to internationalise the dispute. [128]
During the 2015 East Asia Summit, South Korea's President Park Geun-hye stated that concerned parties should observe the Declaration on the Conduct of Parties in the South China Sea and that disputes should be resolved according to international law. "Korea has consistently stressed that the dispute must be peacefully resolved according to international agreements and code of conduct" and "China must guarantee the right of free navigation and flight. [129] [130] The Asahi Shimbun reports that the United States has made an unofficial request to South Korea to express its position on the arbitration case before the ruling but South Korea reportedly turned down the request saying its difficult make a position prior to the ruling. [131]
Compiled from the Center for Strategic and International Studies, [21] the Council of the EU and the European Council, [132] and ASEAN [133]
The United Nations says it has no position regarding the legal or procedural merits of the case and the underlying disputes. [166] [167] On 12 July, the Secretary-General expressed his hope for continued consultations between ASEAN and China "under the framework of the Declaration of the Conduct of Parties in the South China Sea." [168]
The UN's International Court of Justice says it has no involvement in the case. [169]
On 25 July 2016, in Vientiane, Laos, ASEAN issued the joint statement regarding the South China Sea disputeː ensure and promote the peace, stability, and security in the region. [133]
The 36th ASEAN Summit was held virtually on 26 June 2020. Vietnam, as the Chairman of the Summit, released the Chairman's Statement. The Statement said the United Nations Convention on the Law of the Sea is "the basis for determining maritime entitlements, sovereign rights, jurisdiction and legitimate interests over maritime zones, and the 1982 UNCLOS sets out the legal framework within which all activities in the oceans and seas must be carried out." [170]
According to F-Secure, hackers in 2016 infiltrated and extracted confidential information from the Philippines' Department of Justice and the international legal firm which had represented the Philippines at the Hague. The firm said the hack was likely backed by the Chinese government. [171]
Academic Graham Allison observed in 2016, "None of the five permanent members of the UN Security Council have ever accepted any international court's ruling when (in their view) it infringed their sovereignty or national security interests. Thus, when China rejects the Court's decision in this case, it will be doing just what the other great powers have repeatedly done for decades." [172]
President Rodrigo Duterte hoped a non-confrontational approach to China could eventually lead to joint exploration of the West Philippine Sea. [173] At the same time, he ordered the armed forces of the Philippines to occupy and fortify several uninhabited islands in the South China Sea in April 2017 [174] and build structures on Benham Rise. [175] A month later, he signed an executive order formally renaming Benham Rise to Philippine Rise. [176] In May 2017, Duterte said Chinese president Xi Jinping had threatened war if the Philippines tried to enforce the arbitration ruling and drill for oil. [177]
In November 2018, the Philippines and China signed 29 agreements, including cooperation on the Belt and Road Initiative and a memorandum of understanding on joint oil-and-gas developments. [178] [179] In September 2019, Duterte said Xi had offered the Philippines a controlling stake in a gas deal in the Reed Bank if the Philippines set aside the Hague ruling. [180]
By June 2020, Duterte was gradually distancing the Philippines from China. [181] [173] In July that year, he called on the Department of Foreign Affairs to demand China recognize the arbitration ruling. [173] On 22 September 2020, during a speech at the UN, he said, "The award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish, or abandon." [182]
the EU urges all claimants [...] to pursue them in accordance with international law including UNCLOS and its arbitration procedures
She [German Chancellor, Angela Merkel] called the disputes "a serious conflict" and gently offered her support for a legal solution: "I am always a bit surprised why in this case multinational courts should not be an option for a solution". Merkel also emphasized Germany's "wish that the sea trade routes stay free and safe, because they are important for all".
We also support the role arbitration can play in resolving complex disputes and we support states' rights to access dispute settlement mechanisms. [...] We expect all parties to respect the result of the Tribunal's ruling.
And we discussed how any disputes between claimants in the region must be resolved peacefully, through legal means, such as the upcoming arbitration ruling under the U.N. Convention of the Law of the Seas, which the parties are obligated to respect and abide by.
{{
cite web}}
: CS1 maint: unfit URL (
link)
The United Nations said on Wednesday it has nothing to do with the Permanent Court of Arbitration (PCA), which set up a tribunal that handled the South China Sea arbitration case the Philippines filed unilaterally in 2013.
the UN doesn't have a position on the legal and procedural merits of the case or on the disputed claims.
The International Court of Justice (ICJ) wishes to draw the attention of the media and the public to the fact that the Award in the South China Sea Arbitration (The Republic of the Philippines v. The People's Republic of China) was issued by an Arbitral Tribunal acting with the secretarial assistance of the Permanent Court of Arbitration (PCA). The relevant information can be found on the PCA's website (www.pca-cpa.org). The ICJ, which is a totally distinct institution, has had no involvement in the above mentioned case
The Republic of the Philippines v. The People's Republic of China | |
---|---|
![]() Registered with the
Permanent Court of Arbitration | |
Court | An arbitral tribunal constituted under Annex VII to the 1982 United Nations Convention on Law of the Sea (UNCLOS) |
Full case name | An Arbitration before an arbitral tribunal constituted under Annex VII to the 1982 United Nations Convention on Law of the Sea between the Republic of the Philippines and the People's Republic of China |
Decided | 12 July 2016 |
Citation | PCA Case No. 2013-19 |
Transcript | https://pca-cpa.org/en/cases/7/ |
Ruling | |
| |
Court membership | |
Judges sitting | Presiding Arbitrator: Thomas A. Mensah Members: Jean-Pierre Cot Rüdiger Wolfrum Alfred H. Soons Stanisław Pawlak |
The South China Sea Arbitration (Philippines v. China, PCA case number 2013–19) [1] was an arbitration case brought by the Republic of the Philippines against the People's Republic of China (PRC) under Annex VII (subject to Part XV) of the United Nations Convention on the Law of the Sea (UNCLOS, ratified by the Philippines in 1984, by the PRC in 1996, opted out from Section 2 of Part XV by China in 2006 [2]) concerning certain issues in the South China Sea, including the nine-dash line introduced by the mainland-based Republic of China since as early as 1947. [3] [4] [5] A tribunal of arbitrators appointed the Permanent Court of Arbitration (PCA) as the registry for the proceedings. [6]
On 19 February 2013, China declared that it would not participate in the arbitration. [7] On 7 December 2014, it published a white paper to elaborate its position that, among other points, the tribunal lacks jurisdiction. [8] [9] In accordance with Article 3 of Annex VII of UNCLOS, the Philippines appointed 1 of the 5 arbitrators, while China did not appoint any. [11] On 29 October 2015, the tribunal concluded that it had jurisdiction to consider seven of the Philippines' submissions, subject to certain conditions, and postponed the consideration of its jurisdiction on the other eight submissions to the merits phase. [12] [13] [14]
On 12 July 2016, the arbitral tribunal ruled in favor of the Philippines on most of its submissions. It clarified that while it would not "rule on any question of sovereignty ... and would not delimit any maritime boundary", China's historic rights claims over maritime areas (as opposed to land masses and territorial waters) within the "nine-dash line" have no lawful effect unless entitled to under UNCLOS. [15] [16] [17] [18] China has rejected the ruling, as has Taiwan. [19] [20] Eight governments have called for the ruling to be respected, 35 issued generally positive statements noting the ruling but not called for compliance, and eight rejected it. [21] The United Nations does not hold any position on the case or on the disputed claims. [22]
The dispute has been affected by the fact that after Japan renounced all claims to the Spratly Islands and other conquered islands and territories in the Treaty of San Francisco. Neither the Republic of China nor the People's Republic of China had been invited to the treaty negotiations, and the treaty did not designate successor states. [23] on 15 August, the Chinese government issued the Declaration on the Draft Peace Treaty with Japan by the US and the UK and on the San Francisco Conference by the then Foreign Minister Zhou Enlai, reiterating China's sovereignty over the archipelagos in the South China Sea, including the Spratly Islands, and protesting about the absence of any provisions in the draft on who shall take over the South China Sea islands following Japan's renouncement of all rights, title and claim to them. It reiterated that "the Chinese government of the day had taken over those islands" and that the PRC's rightful sovereignty "shall remain intact". [24]
On 28 April 1952, the United States presided over the signing of the Treaty of Peace between Japan and the Republic of China. Article 2 of the document provided that "It is recognized that under Article 2 of the Treaty of Peace which Japan signed at the city of San Francisco on 8 September 1951 (hereinafter referred to as the San Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the Paracel Islands." [24]
The Philippines bases its claim on its geographical proximity to the Spratly Islands. [25]
In May 1956, the dispute escalated after Filipino national Tomas Cloma and his followers settled on the islands and declared the territory as "Freedomland", now known as Kalayaan for himself and later requested to make the territory a protectorate of the Philippines. Tomas Cloma even stole China (ROC)'s national flag from the Taiping Island. In July 1956, he apologised officially for his act and he surrendered the flag he stole to China's embassy in Manila. On 2 October 1956, he wrote a letter and ensured he would not make further training voyages or landings in the territorial waters of China (ROC). [26]
Philippine troops were sent to three of the islands in 1968, when the Philippines were under President Ferdinand Marcos. In the 1970s, some countries began to occupy islands and reefs in the Spratlys. The Spratlys were placed under the jurisdiction of the province of Palawan in 1978.
The PRC claims it is entitled to the Paracel and Spratly Islands because they were allegedly seen as integral parts of China under the Ming dynasty. [25] China and Taiwan have these same territorial claims. [25] The Republic of China (Taiwan) has controlled the largest island – Taiping Island – in the group since 1946.
Vietnam states that the islands have belonged to it since the 17th century, using historical documents of ownership as evidence. [25] Hanoi began to occupy the westernmost islands during this period. [25]
In the early 1970s, Malaysia joined the dispute by claiming the islands nearest to it. [27]
Brunei also extended its exclusive economic zone, claiming Louisa Reef. [27]
Article 298 of Section 3 of Part XV of the Convention provides optional exceptions to the applicability of compulsory procedures provided in Section 2. China made a declaration in 2006 in accordance with this provision of the Convention purporting not to accept any of the procedures provided for in section 2 of Part XV of the convention. Many countries including the United Kingdom, Australia, Italy, France, Canada, and Spain had made similar declarations to reject any of the procedures provided for in sections 2 of Part XV of the convention with respect to the different categories of disputes. [28] However, the Tribunal held that this dispute did not fall within the exceptions provided in Article 298, and was therefore admissible. [17]
The arbitration case involved the Philippines and China but only the Philippines participated in the arbitration.
The Philippines contended that the "nine-dotted line" claim by China is invalid because it violates the UNCLOS agreements about exclusive economic zones and territorial seas. [29] It says that because most of the features in the South China Sea, such as most of the Spratly Islands, cannot sustain life, they cannot be given their own continental shelf as defined in the convention. [30]
China refused to participate in the arbitration, stating that several treaties with the Philippines stipulate that bilateral negotiations be used to resolve border disputes. It also accuses the Philippines of violating the voluntary Declaration on the Conduct of Parties in the South China Sea, made in 2002 between ASEAN and China, which also stipulated bilateral negotiations as the means of resolving border and other disputes. [31] [32] [33] China issued a position paper in December 2014 arguing the dispute was not subject to arbitration because it was ultimately a matter of sovereignty, not exploitation rights. [34] China also cites the fact that it excluded itself from the compulsory arbitration provisions when it ratified UNCLOS. [35] Its refusal, did not prevent the arbitral tribunal from proceeding with the case. [36] In the official and binding international "Position Paper" sent by China to the court, it recognized the 1898 Treaty of Paris and the 1900 Treaty of Washington. Under the said 1900 Treaty of Washington which was a supplement to the 1898 Treaty of Paris, Scarborough Shoal and the Spratlys were recognized as part of the territory of the Philippines. China also reiterated that it recognizes the treaty between the United States and the United Kingdom in 1930, where both nations reiterated the recognition of Philippine territory, which included Scarborough Shoal and the Spratlys. The move came as a surprise to the Filipino delegation, where the Philippines' international law expert Antonio Carpio stated that China likely did not read the full text of the treaties it has reiterated. [37] After the award ruling, the PRC issued a statement rejecting it as 'null' and having decided not to abide by the arbitral tribunal's decision, said it will "ignore the ruling". [38]
Taiwan, officially the Republic of China, stated that the South China Sea islands were first discovered, named, and used by Chinese people. [39] [40] It currently administers Taiping Island or Itu Aba, the largest of the Spratly Islands, but was neither consulted nor invited to the arbitration. Taipei argues that Taiping can sustain human habitation with its freshwater wells and produce, and is thus an island under UNCLOS. It had invited the Philippines and five arbitrators to visit Taiping; the Philippines rejected the invitation, and there was no response from the arbitrators. [41] According to Ian Storey, a regional expert at the ISEAS–Yusof Ishak Institute, for decades, the common understanding among scholars was that "Itu Aba is the only island in the Spratlys". [42] After the tribunal downgraded Itu Aba to a rock, Taiwan rejected the ruling, saying it is "not legally binding on the ROC". It pointed out that the status of Itu Aba was not a point of contention raised by the Philippines, who had brought the case, but was opened up by the tribunal on its own initiative. [43] [44] Lawmakers from the ruling KMT and the opposition DPP also joined in to express their disapprovals. Taiwan's Fisheries Agency declared that Taiwanese fishermen could continue to operate in the waters surrounding Taiping. The coast guard had already deployed a vessel to the area, and a naval frigate mission was pushed ahead of schedule in response to the ruling. [45] [46] [47]
On 11 December 2014, Vietnam filed a statement to the tribunal which put forward three points: 1) Vietnam supports the filing of this case by the Philippines, 2) it rejects China's "nine-dashed line", and 3) it asks the arbitral tribunal to take note of Vietnam's claims on certain islands such as the Paracels. [48]
Brunei sent its own UNCLOS claim through a preliminary submission prior to the arbitration. [49] In May 2009, Malaysia and Vietnam, as well as Vietnam alone, filed claims to the International Tribunal for the Law of the Sea with regard to the islands.[ clarification needed] This was in relation to extending their claimed continental shelves and Exclusive Economic Zones. The People's Republic of China rejected the claims since those violate the "nine-dotted line". The Philippines challenged the Malaysian claim stating that the claims overlap with the North Borneo dispute. [50]
Indonesia made a comment on China's claim by saying that the features are rocks and cannot sustain life, effectively calling the Chinese claim invalid. The Philippines echoed Indonesia's claims, further stating that the islands belong to them through geographic proximity. [50] [51]
The arbitral tribunal convened a Hearing on Jurisdiction and Admissibility on 7 to 13 July 2015, rendered an Award on Jurisdiction and Admissibility on 29 October 2015, convened a hearing on the merits from 24 to 30 November 2015, and issued a unanimous award on 12 July 2016. [17]
On 7 July 2015, case hearings began with the Philippines asking the arbitral tribunal to invalidate China's claims. The hearings were also attended by observers from Indonesia, Japan, Malaysia, Thailand and Vietnam. [13] The case has been compared to Nicaragua v. United States due to similarities of the parties involved such as that a developing country is challenging a permanent member of the United Nations Security Council in an arbitral tribunal. [52]
On 29 October 2015, the tribunal ruled that it had the power to hear the case. It agreed to take up seven of the 15 submissions made by Manila, in particular whether Scarborough Shoal and low-tide areas like Mischief Reef can be considered islands. It set aside seven more pointed claims mainly accusing Beijing of acting unlawfully to be considered at the next hearing on the case's merits. It also told Manila to narrow down the scope of its final request that the judges order that "China shall desist from further unlawful claims and activities." [14]
The tribunal scheduled the hearing on merits of the case from 24 to 30 November 2015. [53]
On 29 October 2015, the PCA published the award by the arbitral tribunal on Jurisdiction and Admissibility [54] for the case. The tribunal found that it has jurisdiction to consider the following seven Philippines' Submissions. (Each number is the Philippines' Submissions number.) The tribunal reserved consideration of its jurisdiction to rule on Nos. 1, 2, 5, 8, 9, 12, and 14.
The tribunal stated in the award that there are continuing disputes in all of the 15 submissions from the Philippines, [54] but for submissions such as No.3, No.4, No.6 and No.7, no known claims from the Philippines prior to the initiation of this arbitration exist, and that China was not aware of (nor had previously opposed) such claims prior to the initiation of arbitration. For Submissions No.8 to No.14, the tribunal held the view that the lawfulness of China's maritime activities in the South China Sea is not related to sovereignty.
On 12 July 2016, the PCA published the award by the arbitral tribunal which it states is final and binding as set out in the convention. [38] [17] Conclusions expressed in the award included the following:
There are countries and multinational bodies that have expressed support or opposition to the Philippines' move to take the South China Sea dispute to the Permanent Court of Arbitration. These entities however may not necessarily support either sides when it comes to the ownership of the disputed area affected by the case.
Compiled from the Center for Strategic and International Studies, [83] the Council of the EU and the European Council, [84] and the Philippine Daily Inquirer [85]
Within the Association of Southeast Asian Nations (ASEAN), Malaysia and Vietnam, who have territorial claims in the South China Sea, as well as Australia, Indonesia, Japan, Singapore and Thailand, sent observers to the proceedings. [106] [107]
In June 2016, before the tribunal issued its ruling, Malaysia's foreign ministry released what it said was a joint statement of ASEAN expressing "serious concern" over land reclamation activities in the South China Sea. Within hours of issuing the statement, Malaysia announced that ASEAN wanted the statement retracted for "urgent amendments". Malaysian Foreign Ministry's Secretary General Othman Hashim later claimed that ASEAN's foreign ministers had "unanimously agreed" to the statement at a meeting, and that "Subsequent developments pertaining to the media statement took place after the departure of the ASEAN foreign ministers". [108]
Cambodian Prime Minister Hun Sen later gave a speech condemning reports that Cambodia had had the statement retracted in order to please China, saying, "Cambodia will not be a puppet of anyone on the South China Sea issue." [109] Hun Sen suggested the case was a "political conspiracy" and that the ruling "will not be fair", [110] but also said that "Cambodia will just choose to stay neutral on this issue." [109] A few days after Hun Sen's speech, the Cambodian People's Party, which Hun Sen heads, issued a statement backing him. According to the statement, "The CPP would like to reject unjust allegations that Cambodia has destroyed the issuing of a joint statement from ASEAN on the issue of the South China Sea both in Kunming recently and in 2012". [111]
On 9 July, shortly before the tribunal issued its ruling, Cambodia's foreign ministry issued a statement reiterating that Cambodia would not join any ASEAN statement on the ruling. [112]
Australia has not sought to take a public position on the matter other than to state that the ruling of the tribunal should be respected. [113] [114] However, Australia has recognised the right of the Philippines to seek arbitration. [87]
European Union encourages all parties to seek peaceful solutions, through dialogue and cooperation, in accordance with international law – in particular with the UN Convention on the Law of the Sea. [115] A foreign affairs of the EU issued a statement saying "Whilst not taking a position on claims, the EU is committed to a maritime order based upon the principles of international law, in particular as reflected in the United Nations Convention on the law of the Sea (UNCLOS),". [116] The EU later stressed that China should respect the ruling from the Hague. [117]
The Group of 7 (Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States as well as a representation from the European Union) made a statement that the bloc should issue a "clear signal" to China's overlapping claims. [118] European Council President Donald Tusk said on the sidelines of a summit in Ise-Shima that the bloc should take a "clear and tough stance" on China's contested maritime claims. [119]
In August 2015, a junior Minister of State of India, V K Singh, told that territorial disputes should be resolved through peaceful means as was done by India and Bangladesh using the mechanisms provided by the UNCLOS, and parties should abide by the Declaration of the Conduct of Parties in the South China Sea. [120] In October 2015, the Foreign Minister of India Sushma Swaraj stated in a joint statement that India supports a peaceful settlement of the dispute. Peaceful means should be used according to the principles of international law, including the UNCLOS. In April 2016, Foreign Minister Sushma Swaraj stated in a communique that Russia, India and China agreed to maintain legal order of seas based on international law, including the UNCLOS, and all related disputes should be addressed through negotiations and agreements between the parties concerned. [121]
The foreign secretary of New Zealand stated in a speech that New Zealand supports the right to seek arbitration on South China Sea disputes. [98]
NATO General Petr Pavel said NATO has "no legal platform" to intervene militarily in the South China Sea territorial disputes, and NATO will not interfere in other region's issues. NATO supports any regional solutions based on political and diplomatic negotiations, "rules-based international system" and peaceful means for resolving discord. [122] [91]
On 14 April 2016, the Fijian government issued a statement to correct a previous media release by China and stated that the Fijian government did not support China's proposition. [123]
In May 2016, Chinese Foreign Ministry spokesperson Hua Chunying said that more than 40 countries had expressed their support for China's position. [124] One 19 May 2016, Foreign Ministry spokesperson Hong Lei stated that Brunei, Mozambique, and Slovenia supported China's stance for negotiations to resolve South China Sea issues. [125] In July 2016, it was reported that more than 70 countries had called for the South China Sea dispute to be resolved through negotiations, not arbitration, although American media and think tanks have expressed doubt, with the Center for Strategic and International Studies (CSIS) via its Asia Maritime Transparency Initiative (AMTI) putting the number at ten. [126] [127]
In a statement of the Shanghai Cooperation Organisation Secretary-General Rashid Olimov on South China Sea issue, all SCO countries agreed and supported China's efforts made to safeguard peace and stability in the South China Sea. Directly concerned states should resolve disputes through negotiation and consultation in accordance with all bilateral treaties and the Declaration on the Conduct of Parties in the South China Sea (DOC), the statement said. It urged to respect the right of every sovereign state to decide by itself the dispute resolution methods, and strongly opposed outsiders' intervention into the South China Sea issue, as well as the attempt to internationalise the dispute. [128]
During the 2015 East Asia Summit, South Korea's President Park Geun-hye stated that concerned parties should observe the Declaration on the Conduct of Parties in the South China Sea and that disputes should be resolved according to international law. "Korea has consistently stressed that the dispute must be peacefully resolved according to international agreements and code of conduct" and "China must guarantee the right of free navigation and flight. [129] [130] The Asahi Shimbun reports that the United States has made an unofficial request to South Korea to express its position on the arbitration case before the ruling but South Korea reportedly turned down the request saying its difficult make a position prior to the ruling. [131]
Compiled from the Center for Strategic and International Studies, [21] the Council of the EU and the European Council, [132] and ASEAN [133]
The United Nations says it has no position regarding the legal or procedural merits of the case and the underlying disputes. [166] [167] On 12 July, the Secretary-General expressed his hope for continued consultations between ASEAN and China "under the framework of the Declaration of the Conduct of Parties in the South China Sea." [168]
The UN's International Court of Justice says it has no involvement in the case. [169]
On 25 July 2016, in Vientiane, Laos, ASEAN issued the joint statement regarding the South China Sea disputeː ensure and promote the peace, stability, and security in the region. [133]
The 36th ASEAN Summit was held virtually on 26 June 2020. Vietnam, as the Chairman of the Summit, released the Chairman's Statement. The Statement said the United Nations Convention on the Law of the Sea is "the basis for determining maritime entitlements, sovereign rights, jurisdiction and legitimate interests over maritime zones, and the 1982 UNCLOS sets out the legal framework within which all activities in the oceans and seas must be carried out." [170]
According to F-Secure, hackers in 2016 infiltrated and extracted confidential information from the Philippines' Department of Justice and the international legal firm which had represented the Philippines at the Hague. The firm said the hack was likely backed by the Chinese government. [171]
Academic Graham Allison observed in 2016, "None of the five permanent members of the UN Security Council have ever accepted any international court's ruling when (in their view) it infringed their sovereignty or national security interests. Thus, when China rejects the Court's decision in this case, it will be doing just what the other great powers have repeatedly done for decades." [172]
President Rodrigo Duterte hoped a non-confrontational approach to China could eventually lead to joint exploration of the West Philippine Sea. [173] At the same time, he ordered the armed forces of the Philippines to occupy and fortify several uninhabited islands in the South China Sea in April 2017 [174] and build structures on Benham Rise. [175] A month later, he signed an executive order formally renaming Benham Rise to Philippine Rise. [176] In May 2017, Duterte said Chinese president Xi Jinping had threatened war if the Philippines tried to enforce the arbitration ruling and drill for oil. [177]
In November 2018, the Philippines and China signed 29 agreements, including cooperation on the Belt and Road Initiative and a memorandum of understanding on joint oil-and-gas developments. [178] [179] In September 2019, Duterte said Xi had offered the Philippines a controlling stake in a gas deal in the Reed Bank if the Philippines set aside the Hague ruling. [180]
By June 2020, Duterte was gradually distancing the Philippines from China. [181] [173] In July that year, he called on the Department of Foreign Affairs to demand China recognize the arbitration ruling. [173] On 22 September 2020, during a speech at the UN, he said, "The award is now part of international law, beyond compromise and beyond the reach of passing governments to dilute, diminish, or abandon." [182]
the EU urges all claimants [...] to pursue them in accordance with international law including UNCLOS and its arbitration procedures
She [German Chancellor, Angela Merkel] called the disputes "a serious conflict" and gently offered her support for a legal solution: "I am always a bit surprised why in this case multinational courts should not be an option for a solution". Merkel also emphasized Germany's "wish that the sea trade routes stay free and safe, because they are important for all".
We also support the role arbitration can play in resolving complex disputes and we support states' rights to access dispute settlement mechanisms. [...] We expect all parties to respect the result of the Tribunal's ruling.
And we discussed how any disputes between claimants in the region must be resolved peacefully, through legal means, such as the upcoming arbitration ruling under the U.N. Convention of the Law of the Seas, which the parties are obligated to respect and abide by.
{{
cite web}}
: CS1 maint: unfit URL (
link)
The United Nations said on Wednesday it has nothing to do with the Permanent Court of Arbitration (PCA), which set up a tribunal that handled the South China Sea arbitration case the Philippines filed unilaterally in 2013.
the UN doesn't have a position on the legal and procedural merits of the case or on the disputed claims.
The International Court of Justice (ICJ) wishes to draw the attention of the media and the public to the fact that the Award in the South China Sea Arbitration (The Republic of the Philippines v. The People's Republic of China) was issued by an Arbitral Tribunal acting with the secretarial assistance of the Permanent Court of Arbitration (PCA). The relevant information can be found on the PCA's website (www.pca-cpa.org). The ICJ, which is a totally distinct institution, has had no involvement in the above mentioned case