A recent decision by an international tribunal in The Hague, Netherlands, has significant implications for other maritime disputes, freedom of navigation, and future oil and gas claims in the Arctic.
The arbitral award issued on July 12, 2016, by a unanimous five-member panel or Permanent Court of Arbitration (PCA) in the dispute between the Philippines and China over rocks and elevations in the South China Sea, sounded a clarion call for the rule of law and the clearly defined maritime boundaries and environmental principles established by the United Nations Convention on Law of the Sea (Convention). It remains to be seen whether China will abide by the decision and enter into negotiations with the Philippines to resolve all remaining disputes to these territories and waters. To date, China, which never participated or recognized the authority of the PCA to arbitrate this case, has rejected the ruling and is continuing to build up its military presence in the region.
The Dispute
Both the Philippines and China are parties to the Convention, which requires that parties to maritime disputes resolve them through arbitration. The dispute essentially revolved around China’s drawing of a so-called “nine-dash-line” around several outcroppings in the South China Sea that borders both China and the Philippines. China claimed that it had historical rights to these outcroppings and that no tribunal under the Convention could rule on its alleged sovereignty to this territory. Tired of having their fishermen harassed in open waters, and their vessels being harassed by Chinese law enforcement vessels, in 2013, the Philippines brought this dispute to the Hague in claiming that China was interfering with traditional Philippine fishing activities at Scarborough Shoal, an island in the South China Sea; that China had no “historic rights” with respect to the maritime areas of the South China Sea; that China had violated its duties under the Convention to protect and preserve the marine environment; that China had breached its obligations under the Convention by operating its law enforcement vessels in a dangerous manner causing serious risk of collision to Philippine vessels navigating in the vicinity; and that the reefs that China had claimed as low-tide elevations did not generate any entitlement to an exclusive economic zone or continental shelf. The Philippines were well-represented by a team of skilled U.S. lawyers, while China refused to attend or participate in the PCA’s deliberations because of its position that the tribunal could not rule on matters of sovereignty, which China claimed over all islands and reefs in the South China Sea, including the Spratly Islands and Scarborough Shoal.
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