Philippine Claims in the South China Sea: A Legal Analysis
Mark E. Rosen, JD, LLM
CNA Occasional Paper
This is the third of three legal analyses commissioned as part of a project entitled “U.S. Policy Options in the South China Sea.” Experienced U.S. international lawyers, such as Captain Mark Rosen, Judge Advocate General’s Corps, USN (ret.), the author of this analysis, were asked to test the various legal arguments that Vietnam, China, Malaysia, Brunei, and the Philippines make in support of their claims, weigh them against the body of international case law associated with maritime disputes of this sort, and, if possible, reach a judgment on which country’s claim is superior.
The Philippine islands are at the center of current maritime disputes in the South China Sea (SCS). The Philippines has had maritime disputes with a number of countries, including the United States. Now, legal and policy attention is focused on sovereignty disputes between the Philippines and principally China in four areas: Scarborough Shoal; Second Thomas Shoal (the site of a beached former U.S. Navy LST); Reed Bank (or Reed Tablemount); and a variety of features in the Spratly island chain, in which the contestants also include Vietnam and the Republic of China (Taiwan). China’s assertion of its nine-dashed-line claim to the South China Sea in its 2009 filing with the UN Commission on the Limits of the Continental Shelf (CLCS) and its most recent actions to exclude Philippine fishermen from the waters around Scarborough Shoal emboldened the Philippine government to seek assistance from an international arbitration tribunal. It remains unclear whether the Chinese government will ever make an appearance before the Tribunal, or what the precedential effect of an adverse “judgment” would be, but this arbitration is an important development in the overall question of how these disputes will be decided and what the applicable rule set will be. Indeed, in the face of increasing tensions between Vietnam and China concerning China’s oil and gas activities in the vicinity of the Paracel Islands, numerous press reports say that Vietnam is considering joining the Philippine arbitration or initiating action on its own.
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