Philippines vs China: the Hague decision

AFTER consideration, the arbitral tribunal ruled that despite its non-participation in the proceedings, China “is a party to the arbitration and is bound under international law by any award made by the tribunal.”

To circumvent China’s objection that the case involves a question of sovereignty, the tribunal interpreted China’s claim of “historic rights” to the South China Sea to relate to the resources of the South China Sea and not to the sea itself.

How did the attorneys for the Philippines plead the case? They approached the problem this way: China claims the South China Sea on the basis of “historic rights.” Disputes involving sovereignty are beyond the scope of the Tribunal, so if the Philippines disputes the nine-dash line on the grounds of sovereignty or declares that it owns Scarborough Shoal as shown on the old maps, then that issue would fall under sovereignty and the Tribunal be removed from its jurisdiction to rule on the case.

Part XV of the Convention entitled “Settlement of disputes” specifically Articles 279 to 284 is clear that if a State resorts to the peaceful settlement of disputes, the dispute must refer to the interpretation or application of the Convention of Nations. United on the Law of the Sea (Unclos).

Likewise, article 288 of the Convention, which refers to the jurisdiction of the court or tribunal which will adjudicate the dispute, stipulates that the jurisdiction of the Tribunal shall be over questions “concerning the interpretation or application of the Convention. “.

So even though the Philippines admits that China does indeed have “historic rights” to the South China Sea, since China signed the Unclos, it has waived its claim to “historic rights” over the area claimed by China. the Philippines. The term “historical rights” generally refers to all the rights that a State may have that would not normally flow from international law. It is deliberately vague and is used by China to justify its illegal claim to the disputed sea.

The Tribunal found that China’s claim to “historic rights” in the South China Sea, with respect to the Philippines claim, was extinguished for being incompatible with the exclusive economic zones provided for in the Unclos.

As for Scarborough Shoal, this is an uninhabitable rock and is not completely submerged in water at high tide. China claims sovereignty over the Scarborough Shoal.

The Tribunal did not rule on the issue of sovereignty, but instead asserted that China was violating artisanal or traditional fishing rights by prohibiting Filipino fishermen who used small boats or outriggers from fishing in the disputed area of Scarborough Shoal. Fishermen in the Philippines (like those in China) have traditional fishing rights in Scarborough Shoal, and China interferes with these rights by restricting access.

According to the Tribunal, the legal basis for the protection of artisanal fishing, “results from the notion of acquired rights and the understanding that, having continued their subsistence through artisanal fishing for an extended period, generations of fishermen have acquired a right, akin to property, in the ability to continue fishing like their ancestors did. So China cannot prevent Filipino artisanal fishermen from fishing in the Scarborough Shoal and that would violate the provisions of the Unclos.

The Tribunal also concluded that the Spratly Islands cannot collectively generate sea areas as a unit, having concluded that none of the characteristics claimed by China are capable of generating an exclusive economic zone.

Ultimately, the Tribunal ruled that within its economic zone, the coastal State [the Philippines] enjoys “the competence provided for by the relevant provisions of the Convention with regard to the establishment and use of artificial islands, installations and structures”.

Next, the Tribunal considered the legality of Chinese actions in the South China Sea. Having found that certain areas are within the exclusive economic zone of the Philippines, the Tribunal held that China violated the sovereign rights of the Philippines in its exclusive economic zone by (a) interfering with fishing and oil exploration in the Philippines; b) the construction of artificial islands; and c) not prevent Chinese fishermen from fishing in the area.

The Tribunal considered the effect on the marine environment of China’s large-scale land reclamation and construction of man-made islands in seven parts of the Spratly Islands, which caused irreparable damage to coral reefs and to marine biodiversity. China has violated its obligations under the Unclos to preserve and protect fragile ecosystems and the habitat of depleted, threatened or endangered species.

As a result, the Tribunal concluded that, as between the Philippines and China, there was no legal basis for China to claim historic rights to the resources, going beyond Convention rights in the maritime areas included. in the line of nine dashes being claimed by China.

Thus summarized, the Tribunal ruled in favor of the Philippines on the application and interpretation of the Unclos without going into the question of sovereignty.

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