A Commentary 

 

Why Does China Ignore South China Sea Arbitration Brought By the Philippines?

                    

Michael Gau (高聖惕)/a professor at the Institute of the Law of the Sea at National Taiwan Ocean University

 

 

Source: United Daily News     May 24, 2016

 

The Philippines unilaterally initiated in 2013 an arbitration case against China’s claims to sovereignty over the islets in the South China Sea and their surrounding waters. However, if one looks into the claims made by the Philippines, one will find that they are paradoxical. Therefore, it should not be difficult for people to understand why China would reject the jurisdiction of the tribunal or accept any ruling to be handed down.    

 

During a court hearing at the Permanent Court of Arbitration (PCA) in The Hague, the Netherlands last November, the Philippines argued before the tribunal that the legal status of the islands and reefs in the South China Sea was undetermined, hence China had no right to claim sovereignty over the Shisha Islands (Paracel Islands,西沙群島) and the Nansha Islands (Spratly Islands,南沙群島) in the South China Sea. The Philippines also argued that a total of five features controlled or occupied by China were low-tide elevations and were not part of the Continental Shelf (CS) and Exclusive Economic Zone (EEZ) as claimed by China. Therefore, China, the Philippines argued, should leave the reefs or islets untouched.     

   

However, if China lost the arbitration and withdrew from the islets and reefs following the tribunal’s ruling, it would be tantamount to relinquishing its sovereignty over the islets in the South China, as claimed by China in 1935. It is noted that the PCA has no jurisdiction over China’s claims of sovereignty over islets in the South China Sea.  

 

In addition, the Philippines claimed that it had sovereignty over the Scarborough Shoal in the Chungsha Islands (Macclesfield Bank), and demanded that China respect its rights and freedom of navigation in the region and abide by the Convention on the International Regulations for Preventing Collisions at Sea, COLREG). It would be tantamount to saying that when sovereign disputes occur, China should automatically abandon the Scarborough Shoal, by the Philippines’ logic.  

 

The Philippines stated that they brought the case to the PCA for arbitration not because they intended to resolve issues on maritime boundaries. The Philippines argued that China should decrease its sea area surrounding a total of nine separate islets controlled or occupied by China, including the Taiping Islands (太平島) in the Nansha (Spratly) Islands, based on the principle of equidistance. Should the Philippines win the arbitration, it would mean that China would lose its EEZ and CS in the West Philippine Sea (WPS) area and its activities would be limited to its territorial waters surrounding only four islets in the region. Under such circumstances, if China loses its EEZ and CS, it would be unnecessary for China and the Philippines to settle maritime delimitations.  

 

The Philippines accused China of encroaching upon its EEZ and CS, but China also has an EEZ and CS in the West Philippine Sea. The Philippines recognizes that there are islands in what they call the Kalayaan Island Group (Nansha Islands), so China, which also claims sovereignty over islets in the region, should also have the right to claim an EEZ and CS. It is unjustifiable for the Philippines to disavow China’s claims.    

 

The Philippines has argued that it has sovereignty over the Scarborough Shoal in the Chungsha Islands (Macclesfield Bank). However, the case the Philippine brought to the PCA was based on the premise that sovereignty over the Scarborough Shoal belonged to China, so it was paradoxical for the Philippines to claim that it had historic fishing rights in the region. How could China do exactly what the court want it to do if the court hands down an unfavorable ruling against China in the Philippines case?    

 

The Philippines brought the case to the PCA because it held the view that, through arbitration, it would be conducive to settling the disputes over maritime delimitation between the Philippines and China. However, even if the Philippines wins the arbitration, China will continue to conduct law enforcement and explore resources in the region based on its sovereignty over the islets in the region. Under such circumstances, the US and the Philippines will criticize China for defying international law. This is definitely not helpful for setting the disputes between the Philippines and China as the Philippines had claimed.  

 

【Editor’s notes: 1) The Permanent Court of Arbitration (PCA), on its official website, says that the PCA is not a court in the judicial sense of the term. It does not itself resolve disputes or decide who wins or who loses an arbitration. The parties in disputes have to agree beforehand to submit the dispute to the PCA prior to an arbitration. 2) With regard to the ROC’s position on the South China Sea, please refer to ROC Foreign Ministry’s official statement on July 7th, 2015 in the following link: 

 

http://www.mofa.gov.tw/en/News_Content.aspx?n=1EADDCFD4C6EC567&sms=5B9044CF1188EE23&s=EDEBCA08C7F51C98

 

,as well as Interior Ministry’s statement on December 12, 2015 in the following link: 

 

http://www.moi.gov.tw/english/english_news/news_detail.aspx?type=ministry&sn=14067】