South China Sea Dispute: Phillipines Vs. China

South China Sea Dispute: Phillipines Vs. China

June 9, 2020 International Law 0

THE SOUTH CHINA SEA DISPUTE

Location: Sea between South of China and North of Indonesia.

Number of countries involved: China, Phillipines, Vietnam, Malaysia, Brunei and Taiwan.

History:

1. China claims that since Xia and Han dynasty (2000 to 4000 years old) china has control over the South China Sea.

2. Nine-das-line was formed by China in 1957. The virtual line was formed by China itself. And as per this line, China claimed that whatever comes within this line is China’s territory. (See the image above)

3. Since formation of UNCLOS (United Nation Convention on the Law Of the Sea), it has acted as a barrier for the claim of the China on the South China Sea.



Claims:

The major dispute is between Phillipines and China. Although, other countries make their claim partly on the South China Sea. Let us look the claim of all the countries:

1. China: China wants nine-dash-line implemented on the basis of its historical claims (Xia and Hans Dynasty).

2. Vietnam: Vietnam denies the historical claims of the China and argues that they were ruling over both Spratley and Paracel Island since 17th Century. That is, it also claims the South China Sea as its territory on the basis of the Historical evidences.

3. Phillipines: Since Phillipines is close to Spartley Island it also claims Spartley as its territory.

4. Malaysia: It claims territorial waters around its border in South China Sea and some Island of Spratley group.

5. Brunei: It claims only territorial waters around its border.

THE SOUTH CHINA SEA ARBITRATION

(THE REPUBLIC OF THE PHILIPPINES V. THE PEOPLE’S REPUBLIC OF CHINA)

Issues:

1. Whether China’s maritime entitlements in the South China Sea can extend beyond those expressly permitted by the United Nations Convention on the Law of the Sea?

2. Whether China has unlawfully interfered with the enjoyment and exercise of the sovereign rights of the Philippines with respect to the living and non-living resources of its exclusive economic zone and continental shelf?

3. Whether China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the exclusive economic zone of the Philippines?

4. Whether China has unlawfully aggravated and extended the dispute since the commencement of this arbitration in January 2013?



5. Does Permanent Court of Arbitration have jurisdiction over this case?

Decision of Permanent Court of Arbitration:-

1. While answering to the question of jurisdiction, the tribunal said that since both the states are parties under the UNCLOS therefore, this Tribunal has jurisdiction.

2. While answering to China’s historical claims on the South China Sea, the Tribunal noted that there is evidence that Chinese navigators and fishermen, as well as those of other States, had historically made use of the islands in the South China Sea. the Tribunal considered that prior to the Convention, the waters of the South China Sea beyond the territorial sea were legally part of the high seas (open ocean, especially that not within any country’s jurisdiction), in which vessels from any State could freely navigate and fish. Therefore, the Tribunal ruled that there was no evidence that China had historically exercised exclusive control over the waters of the South China Sea or prevented other States from exploiting their resources. Also, the Tribunal concluded that, as between the Philippines and China, there was no legal basis for China to claim historic rights to resources, in excess of the rights provided for by the Convention, within the sea areas falling within the ‘nine-dash line’.

2. The Tribunal found as a matter of fact that China had (a) interfered with Philippine petroleum exploration,(b) purported to prohibit fishing by Philippine vessels within the Philippines’ exclusive economic zone, (c) protected and failed to prevent Chinese fishermen from fishing within the Philippines’ exclusive economic zone at Mischief Reef and Second Thomas Shoal (both are places in South China Sea), and (d) constructed installations and artificial islands at Mischief Reef without the authorization of the Philippines. The Tribunal therefore concluded that China had violated the Philippines’ sovereign rights with respect to its exclusive economic zone and continental shelf.

3. The Tribunal considered the lawfulness of the conduct of Chinese law enforcement vessels at Scarborough Shoal on two occasions in April and May 2012 when Chinese vessels had sought to physically obstruct Philippine vessels from approaching or gaining entrance to the Shoal. The Tribunal concluded that China had breached its obligations under the Convention on the International Regulations for Preventing Collisions at Sea, 1972, and Article 94 the Convention concerning maritime safety.

4. While the dispute was pending before the the tribunal, the China was engaged in destroying evidence and other aggravation. Therefore, the Tribunal noted that China has (a) built a large artificial island on Mischief Reef, a low-tide elevation located in the exclusive economic zone of the Philippines; (b) caused permanent, irreparable harm to the coral reef ecosystem and (c) permanently destroyed evidence of the natural condition of the features in question. The Tribunal concluded that China had violated its obligations to refrain from aggravating or extending the Parties’ disputes during the pendency of the settlement process

Conclusion:



Before the UNCLOS, the law of the sea was in state of disorder. There were conflicting claims on the breadth of territorial sea etc. But this convention brought the end to so many disputes on the law of the seas.

So as per the decision of the Tribunal, the South China Sea is the part of the high seas. And as per the UNCLOS 1982 the high seas shall be reserved for peaceful purposes(Article 88). No state may validly puport to subject any part of the high seas to its sovereignty (Article 89).

Also, Article 87 of the Convention states that the freedom of high seas such as freedom of navigation. Freedom of overflight, freedom of fishing, freedom of scientific research.

Image Courtesy: https: www.rfa.org/

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