The Philippines v. China Case and the South China Sea Disputes
Robert C. Beckman
On 22 January 2013, the Philippines officially notified China that it had instituted arbitral proceedings1 against China under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). This chapter will examine the role of UNCLOS and international law in the South China Sea disputes, and will focus in particular on the significance of the arbitration instituted by the Philippines. It will explain the legal issues raised by the Philippines' Statement of Claim. It will also analyse the possible impact of the case on the disputes concerning maritime claims in the South China Sea, including China's claim to rights and jurisdiction in the maritime space inside the infamous nine-dash line on the Chinese map of the South China Sea.
Legal Disputes in the South China Sea
Disputes on Sovereignty over Off-Shore Islands
The fundamental dispute in the South China Sea concerns sovereignty over offshore islands. Brunei Darussalam, China, Malaysia, the Philippines, and Vietnam claim some or all of the islands in the Spratly Islands. China and the Philippines claim the islands in Scarborough Shoal, and China and Vietnam claim the Paracel Islands. In addition, Taiwan claims the same islands as China.
The international law on the acquisition and loss of territory (including islands) is set out in the principles and rules of customary international law. There are no provisions in UNCLOS on how to determine which State has the better claim to sovereignty over a disputed territory. UNCLOS only sets out what maritime zones can be claimed from land territory (including islands), as well as the rights and jurisdiction of States in such maritime zones.
The fundamental principle of international law governing the settlement of disputes is that a dispute between two States on an issue of international law cannot be referred to an international court or tribunal without the consent of both parties to the dispute. Therefore, the disputes on which State has the better claim to sovereignty over the disputed islands in the South China Sea cannot be referred to any form of third party dispute settlement without the consent of all parties to the dispute.