Earlier in January this year, the Philippines submitted a unilateral challenge to China on certain key aspects of their ongoing dispute in South China Sea (SCS) maritime delimitations under the United Nations Convention on the Law of the Seas (UNCLOS). This challenge will take the form of an arbitration case before the International Tribunal on the Law of the Seas (ITLOS). To the uninitiated, this move is intriguing but unclear as to its real-world implications for international maritime law or the future of SCS geopolitics. The following primer attempts to translate the dense jargon of maritime law, distill the meanings behind subtle diplomatic language of Claimant States, and untangle the intricate web of geopolitical maneuvering to provide a clearer, layman picture of this case and its implications for the SCS disputes.
Why the arbitration case?
The ongoing dispute between the Philippines and China has been simmering for many years. Ever since a joint exploration agreement (along with Vietnam) to conduct seismic review of potential hydrocarbons in the SCS region collapsed in 2007, the tone and intensity of SCS disputes have escalated. The situation came to a head when in early 2012, Chinese Coast Guard ships came into confrontation with a Philippine naval ship over harassment of fishermen in Scarborough Shoal, a formation in the Spratlys (南沙in Chinese). The Scarborough Shoal standoff did not end well for the Philippines as China has now established an ongoing blockade of the shoal. (More discussion of this standoff and its implications to follow in a later article) In response, the Philippines moved for ASEAN to issue a unified statement to China censoring it for its actions in the South China Sea. However, other ASEAN members proved reluctant to do so for many reasons. (More discussion of this will come in a later article) Suffice it to say, by Fall 2012, the Philippines began actively exploring other options to pursue its dispute with China.
What is happening?
To the layman observer of SCS disputes, the Philippines’ move to challenge China by arbitration may have been surprising. After all, it’s generally understood that China studiedly avoids multilateral engagement on SCS disputes and/or 3rd party mediation, insisting that the SCS disputes are a regional issue that should be addressed on a bilateral basis. Questions regarding this case include:
- Can the Philippines unilaterally bring China to arbitration? And if so, does China have to engage?
- Regardless of China’s engagement, does the ITLOS have jurisdiction to rule on the challenges?
- What are the points the Philippines is challenging?
- Even if ITLOS has jurisdiction to rule on certain aspects of challenges put forth, what are the actual implications for SCS disputes?