The Arbitration between the People’s Republic of China and the Philippines over the Dispute in the South China Sea
Donald R Rothwell
ANU College of Law Research Paper No. 14–48
International law has a significant role to play in the multiple disputes that exist throughout the South China Sea. The first relevant area of international law is that dealing with territoriality and the basis under international law that States are able to assert, and have recognised, territorial claims. This area of international law is well developed, and notwithstanding the passing of an era when new lands were being discovered and territorial claims were asserted, international courts are still being called upon to settle a number of contemporary territorial disputes. (1) Some of these disputes concern the direction of a territorial boundary, while others go directly to title over land territory such as islands. (2) The second body of international law of relevance is that associated with the law of the sea. The law of the sea has steadily developed over 400 years, first through customary international law based upon the practice of states and then post World War II increasingly through the development of new treaties. (3) The Third United Nations Conference on the Law of the Sea ran from 1973-1982 and resulted in agreement being reached upon the 1982 United Nations Convention on the Law of the Sea (LOSC).(4) The LOSC, which entered into force in 1994, remains the dominant international law of the sea instrument that identifies the scope and extent of various maritime zones, provides mechanisms for the delimitation of maritime boundaries, and also for the resolution of international disputes as they relate to the law of the sea.
While international law recognises that ‘the land dominates the sea’ and accordingly coastal states need to be able to demonstrate their territorial sovereignty in order to be able to assert maritime claims, once territoriality is confirmed then a coastal state enjoys significant entitlements of sovereign rights and jurisdiction over its adjacent maritime domain. While overlapping maritime claims will be subject to an obligation on the part of the coastal states concerned to agree upon maritime boundaries, (5) nevertheless the potential entitlements of a coastal state to be able to enjoy access to living and non-living resources such as fish stocks, and oil and gas, make the confirmation of territoriality and the assertion of appropriate maritime claims a significant sovereign right.
It is in this context that the dispute resolution mechanisms found in Part XV of the LOSC are of particular significance. (6) The LOSC is distinctive amongst multilateral international treaties in that it contains within it compulsory mechanisms for dispute settlement. Every state party to the LOSC is therefore bound to abide by a range of general and specific mechanisms that are designed to bring about the peaceful resolution of international disputes as they relate to the law of the sea. There are some exceptions to the Part XV regime, especially as they relate to matters concerning territorial sovereignty and military operations. There is also a recognition that states parties may wish to avail themselves of some dispute resolution mechanisms and not others. The consequence of this is that notwithstanding states having made a declaration as to which dispute resolution procedures they have opted out of, there remain in place certain default mechanisms which will always apply.
This paper will review these issues as they particularly apply with respect to the mechanisms that are available to states under Part XV of the LOSC to resolve their disputes, in the context of the Philippines application commenced against China in January 2013. Particular attention is given to Article 298 of the LOSC and to the default mechanism of conciliation as a means of dispute resolution. It does so in the context of China’s Article 298 declaration and the implications that may have for the outcome of Annex VII Arbitration proceedings. This paper commences with a review of those proceedings, before turning to consider mechanisms generally under Part XV of the LOSC, Article 298 declarations, and Annex V Conciliation. In conclusion some consideration will be given to the implications of these mechanisms for the Philippines/China South China Sea dispute.
∗ Presented at Maritime Security in the South China Sea Tokyo Workshop, hosted by Centre for Military and Security Law (ANU College of Law, Australian National University), and Australian Network for Japanese Law (ANJeL), Tokyo, 3-4 November 2014.
1 See generally Hitoshi Nasu and Donald R. Rothwell, “Re-Evaluating the Role of International Law in Territorial and Maritime Disputes in East Asia,” Asian Journal of International Law 4 (2014): 55-79.
2 See eg. Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (2002) ICJ Reports 625.
3 Donald R. Rothwell and Tim Stephens, The International Law of the Sea (Oxford: Hart, 2010), 1-24.
4 1833 United Nations Treaty Series 397
5 LOSC, Articles 15, 74, 83.
6 See generally Igor V. Karaman, Dispute Resolution in the Law of the Sea, (Leiden: Martinus Nijhoff, 2012); Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge: Cambridge University Press, 2005).