On July 12, a five-judge tribunal in Hague delivered a landmark award on maritime entitlements in the South China Sea. The arbitration concerned disputes between Philippines and China regarding the legal basis of maritime rights and entitlements in the South China Sea, the status of certain geographic features in the South China Sea, and the lawfulness of certain actions taken by China in the South China Sea.

Both Philippines and China are parties to the 1982 United Nations Convention on the Law of the Sea (Convention or UNCLOS). It has even been ratified by 168 parties. The Convention was adopted in order to settle all issues relating to the law of the sea. But the Convention does not address the sovereignty of States over land territory. Also it does contain provisions concerning the delimitation of maritime boundaries. The Convention includes a system for the peaceful settlement of disputes which is set out in Part XV of the Convention, which provides for a variety of dispute settlement procedures, including compulsory arbitration in accordance with a procedure contained in Annex VII to the Convention. It was pursuant to Part XV of and Annex VII to the Convention that the Philippines commenced the arbitration against China in 2013. China had made a declaration in 2006 to exclude maritime boundary delimitation from its acceptance of compulsory dispute settlement, which the Convention expressly permitted for maritime boundaries. The Tribunal thus refrained from delimiting any maritime boundary between the Parties or involving any other State bordering on the South China Sea.

Primarily Philippines sought to resolve a dispute concerning the source of maritime rights and entitlements in the South China Sea. Philippines sought a declaration from the Tribunal that China’s rights and entitlements in the South China Sea must be based on the Convention and not on any claim to historic rights as claimed by China. It further sought a declaration that China’s claim to rights within the ‘nine-dash line’ marked on Chinese maps were without any lawful effect. It further asked the Tribunal to resolve a dispute concerning the entitlements to maritime zones that would be generated under the Convention by Scarborough Shoal and certain maritime features in the Spratly Islands that were claimed by both the Philippines and China. The Spratly Islands is a constellation of small islands and coral reefs in the southern portion of the South China Sea.  It is the site of longstanding territorial disputes among various of the littoral States of the South China Sea. Considered as a risk to navigation, it is identified on nautical charts as the “dangerous ground”!

The Convention provide that submerged banks and low-tide elevations are incapable on their own of generating any entitlements to maritime areas and that rocks which cannot sustain human habitation or economic life of their own do not generate an entitlement to an exclusive economic zone of 200 nautical miles or even to a continental shelf. Philippines sought a declaration that all of the features claimed by China in the Spratly Islands and Scarborough Shoal, fall within one or the other of these categories and that none of these features generates an entitlement to an exclusive economic zone or to a continental shelf.

Though China did not participate in the proceedings, yet in its Position Paper China argued that the Tribunal lacked jurisdiction because the essence of the subject-matter of the arbitration is the territorial sovereignty over the relevant maritime features in the South China Sea and China and the Philippines had agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. It further stated that the disputes submitted by the Philippines would constitute an integral part of maritime delimitation between the two countries.  In the international sphere, China has taken the position that it has indisputable sovereignty over the South China Sea Islands and the adjacent waters. China’s sovereignty and relevant rights in the South China Sea, formed in the long historical course have been reaffirmed by China’s domestic laws on many occasions and protected under international law including the Convention. China has further taken the stand that in the issues of territorial sovereignty and maritime rights and interests it will never accept any solution imposed on it or any unilateral resort to a third-party dispute settlement since as a sovereign state and a State Party to the Convention it is entitled to choose the means and procedures of dispute settlement of its own will. As per China, since the 1990s China and Philippines have repeatedly reaffirmed in bilateral documents that they shall resolve relevant disputes through negotiations and consultations. The Declaration on the Conduct of Parties in the South China Sea explicitly states that the sovereign states directly concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means through friendly consultations and negotiations.