Arbitration 101: Philippines v. China
The arbitration case launched by the Philippines against China currently stands as the most significant, and most closely watched, development for specialists and observers of the maritime disputes in the South China Sea (SCS). To help observers navigate through this foggy proceeding, this article attempts to provide a focused overview of the arbitration case and developments in the bilateral dispute between the two parties.
Although the territorial and maritime issues in the SCS have technically been in existence since the 1930s, the case of the Philippines against China is a direct result of very recent events arising out of the long-festering dispute between the two countries. In the aftermath of tensions between the Philippines and China over the latter’s facilities in Mischief Reef in 1999 and the conclusion of a maritime delimitation between China and Vietnam in the Gulf of Tonkin, a modus vivendi was reached with the signing of the 2002 Declaration of Conduct of Parties in the SCS (DOC). By 2005 it appeared that relations between the parties had stabilized enough that their national oil companies entered into a Joint Marine Seismic Undertaking that was implemented until 2008. Relations took a downturn, however, in 2009 when submissions were made (one by Vietnam and Malaysia jointly, and another by Vietnam alone) for areas of the continental shelf beyond 200 nautical miles in the SCS in accordance with UNCLOS. These immediately prompted China’s protest and first official publication of its SCS claim known as the so-called nine dashed line, which was followed by a sharp exchange of diplomatic notes. The tussle was thereafter followed by a string of increasingly risky confrontations at sea.
On the Philippine side, the SCS disputes came to the attention of the fledgling Presidential administration with an incident in 2011 involving interference by China Maritime Surveillance ships with a Philippine seismic survey ship at Reed Bank. Soon after, China lodged a diplomatic protest against the Philippines’ public auction of petroleum concession blocks which included two areas between Reed Bank and the Philippine island of Palawan. The Philippines subsequently lodged its own diplomatic protests against China’s fishing and military activities in Reed Bank and nearby areas. Relations increasingly became strained as China’s press openly warned of military action, spurring an official response from the Philippines. The exchange of protests continued well into the first quarter of 2012. Tensions between the two countries reached a head in April that year with a months-long confrontation between Philippine and Chinese vessels at Scarborough Shoal, which ended when Philippine ships left the shoal upon a reported agreement for mutual withdrawal in June 2012. Shortly after, however, Chinese vessels returned and have since been in control of the shoal.
Launching the Case
On January 23, 2013, the Philippine announced that it initiated an arbitration case against China by issuing a Notification and Statement of Claim in accordance with the dispute settlement provisions of UNCLOS, particularly under Art. 287 and Annex VII. Both the Philippines and China are signatories to UNCLOS, having ratified it in 1984 and 2006 respectively.