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Permanent Court of Arbitration/China/Philippines: Plan to Consider South China Sea Dispute

(Nov. 4, 2015) On October 29, 2015, the Permanent Court of Arbitration (PCA), located in The Hague, issued an Award on Jurisdiction and Admissibility to hear the dispute brought before it by the Philippines against China concerning rights over contested areas in the South China Sea. The central issue in the case, according to the PCA, is

the role of ‘historic rights’ and the source of maritime entitlements in the South China Sea, the status of certain maritime features in the South China Sea and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China in the South China Sea that are alleged by the Philippines to violate the Convention [on the Law of the Sea]. (Press Release, PCA, Arbitration Between the Republic of the Philippines and the People’s Republic of China (Oct. 29, 2015), PCA website; Convention on the Law of the Sea (Dec. 10, 1982), United Nations website.)

Due to the restrictions on the type of issues that the PCA can consider, the Philippines has said that the case will not include asking the tribunal to rule on the conflicting sovereignty claims in the South China Sea region. (Press Release, supra.)

Background

The Philippines claims China has illegally annexed certain islands and shoals of the South China Sea, while China argues that the PCA has no jurisdiction in the matter. China is therefore boycotting the proceedings and proposes that bilateral negotiations be held instead. (Kasey Tuttle, Hague Court to Rule in South China Sea Dispute, PAPER CHASE (Oct. 30, 2015).)

In January 2013, a year after Chinese ships took over the Scarborough Shoal, one of the disputed areas, the Philippines first took the issue to the PCA. The Chinese had been driving away fishermen from other countries, including the Philippines, sometimes with the use of water cannons. (Constance A. Johnson, China: Arbitration in South China Sea Dispute, GLOBAL LEGAL MONITOR (Feb. 1, 2013); China to Snub Arbitration Hearing on Feud with Philippines, MANILA BULLETIN (July 17, 2015).)

When speaking in July 2015 about the five-member PCA tribunal that was meeting to consider whether the PCA had jurisdiction over the case, Filipino Foreign Secretary Albert del Rosario said that his country would accept any ruling “win or lose.” (China to Snub Arbitration Hearing on Feud with Philippines, supra.) China’s Ambassador to the Philippines, Zhao Jianhua, noted at the same time that China would maintain its decision not to accept the arbitration, but that “[o]ur door for bilateral consultation and negotiation is still open and will be open forever.” He added that China would never resort to armed conflict over the South China Sea territory. (Id.)