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CASE ANAYSIS: The Republic of the Philippines v. The People's Republic of China
CASE ANALYSIS: The Republic of the Philippines v. The People's Republic of China
CASE:
The case revolves around the maritime disputes between the Philippines and China[1] in the expansive South China Sea. While the focal point is on maritime entitlement, the disagreement extends beyond to encompass issues of territorial sovereignty and maritime delimitation. Notably, the tribunal recognized its lack of jurisdiction in determining claims related to specific islands in the South China Sea. However, it asserted competence in addressing China's alleged historic rights in the region and the legality of its activities. China, through its "nine-dash line" depicted on maps, claimed exclusive rights over both living and non-living resources in the ocean, surpassing the boundaries of its Exclusive Economic Zone (EEZ) and continental shelf as defined by the United Nations Convention on the Law of the Sea (UNCLOS). The tribunal ruled against China, deeming its historical rights claim incompatible with UNCLOS.
Consequently, activities conducted by China, such as the construction of artificial islands, operation of maritime surveillance vessels, and fishing, were declared unlawful. Moreover, the tribunal highlighted the severe environmental repercussions stemming from China's actions, including fishing, land reclamation, and artificial island construction, causing significant harm to the maritime ecosystem. In essence, the verdict underscored the violation of international maritime law by China in the South China Sea, particularly concerning historic rights and the adverse impact on the marine environment.
ARBITRAL AWARD:
The arbitral award in the maritime dispute between the People's Republic of China and the Republic of the Philippines encompasses significant features that have broad implications for maritime law. One crucial aspect is the establishment of clear standards by the arbitral tribunal for determining when a maritime feature qualifies as an island, thereby generating entitlement to maritime zones beyond territorial seas. The tribunal highlighted a key distinction, ruling that rocks, which cannot sustain human or economic life, only give rise to a territorial sea, not an Exclusive Economic Zone (EEZ) or Special Economic Zone (SEZ). Notably, the tribunal emphasized that China's land reclamation activities on coral reefs, transforming them into artificial islands, did not alter their status as low tide elevations. This underscores the tribunal's role in interpreting the law of the sea, asserting that human intervention cannot change the inherent capacity of a feature to sustain habitation or economic life. On the procedural front, the tribunal addressed jurisdictional issues, particularly China's non-participation in the proceedings, contending that the maritime dispute should be resolved solely through bilateral negotiations. The tribunal examined China's declaration in 2006[2], under Article 298[3] of the United Nations Convention on the Law of the Sea (UNCLOS), excluding maritime delimitation disputes from compulsory settlement. Despite this, the tribunal asserted its jurisdiction over disputes related to the status of maritime features and entitlements to maritime zones, differentiating them from delimitation issues. Furthermore, the award clarified the scope of the optional exception under Article 298(1)(a) of UNCLOS concerning historic titles, distinguishing between historic rights and historic titles. The tribunal also rejected China's argument under Article 281 of UNCLOS, which posited that the parties had implicitly excluded arbitration by agreeing to alternative settlement mechanisms. In contrast to the Southern Bluefin Tuna Arbitration Case, the tribunal held that Article 281 requires a clear statement of exclusion by the parties for alternative procedures to apply, reinforcing the application of compulsory arbitration without such explicit exclusion. Overall, the arbitral award significantly contributes to the development and clarification of maritime law, impacting issues of jurisdiction and the determination of maritime features' legal status.
CRITICISM OF THE ARBITRAL AWARD:
Critics contend that the award in the Philippines vs. China arbitration case regarding the South China Sea displays a perceived bias in favor of the Philippines. Scholars argue that the tribunal, in its judgment, may not have adequately considered China's perspective, with concerns raised about the tribunal's composition and its jurisdiction assertion[4]. The disentanglement of maritime entitlements and delimitation without sufficient reasoning and the broadening of compulsory arbitration scope under UNCLOS through Article 281 interpretation also faced criticism. This multifaceted critique reflects varied viewpoints on the fairness and comprehensiveness of the tribunal's decision.
AUTHOR’S ANALYSIS ON THE AWARD:
The author strongly criticizes the tribunal's award, focusing on the violations of the non-ultra petita rule and Article 10 of Annex VII[5]. The central argument revolves around the tribunal's exceeding its authority by making conclusions and verdicts that were beyond the scope of the Philippines' Final Submissions. The non-ultra petite rule, a well-established principle in international dispute settlement, obliges a tribunal to address only the issues presented in the final submissions of the parties. The author contends that the tribunal failed to adhere to this rule, citing the ICJ's Asylum case as a precedent emphasizing the duty of the court to refrain from deciding points not included in the submissions. Moreover, the author introduces the broader scope of Article 10 of Annex VII, which requires the award to be confined to the subject matter of the dispute. The author quotes the Virginia Commentary[6], highlighting the potential substantive implications of this requirement and its uncertain application to the entire text of the decision. The author identifies a clear violation of both the non-ultra petite rule and Article 10 in the tribunal's discussion of the features not named in the Philippines' Final Submissions. Despite the Philippines' omission of any submission regarding the status of these features, the tribunal extensively covered the matter in its award, breaching the confines set by the rules. In conclusion, the author argues that these violations jeopardize the validity of the award, emphasizing the tribunal's failure to consider its jurisdiction and authority properly. The critical analysis underscores the need for adherence to established principles in international dispute resolution and raises concerns about the potential challenges to the validity of the award based on these breaches.
[1] PCA Case no. 2013-19, The Republic of the Philippines v. The People's Republic of China, Registry:
PermanentCourt of Arbitration, see - https://docs.pca-cpa.org/2016/07/PH-CN-20160712-Award.pdf
[2] China's deceleration, Declaration and Reservations, UN, dated 25th August 2006, see
https://treaties.un.org/Pages/Declarations.aspx?index=China&lang=_en&chapter=21&treaty=463
[3] Article 298, Section 3, Part XV, Pg. no. 134, see ~https://www.un.org/depts/los/convention agreements/texts/unclos/unclose.pdf
[4] Chinese Society of International Law, The South China Sea Arbitration Awards: A Critical Study,
Oxford University Press.
[5] Article 10, Annex VII, Unclos, Pg. no. 188, see https://www.un.org/depts/los/convention agreements/texts/unclos/unclos_e.pdf
[6] Shabtai Rosenne & Louis B. Sohn (eds.), Virginia Commentary, Vol. V (1989), p.434
- The tribunal's landmark decision in the South China Sea case sets clear standards for maritime entitlements, emphasizing that artificial islands cannot alter the inherent legal status of features.
- Critics argue that the arbitration award may have favored the Philippines.
- The author's analysis spotlights a critical breach, contending that the tribunal violated the non-ultra petita rule and Article 10 of Annex VII, potentially undermining the validity of the award.
