LEGAL ANALYSIS OF SOUTH

CHINA SEA DISPUTE

AN EMPHASIS ON PHILIPPINES V. CHINA ARBITRATION CASE (2016)
SUBJECT: ALTERNATIVE DISPUTE RESOLUTION

AUTHORED BY:
ANUJ AHLAWAT
(01416503513) BBA/LLB, 8TH SEMESTER
SURVEY OF LITERATURE

The researcher in order to understand, examine and broaden the perspective on the title
disciplines referred to several publications of national and international authors. Some of the
notable ones are enumerated as follows:

China and South China Sea Disputes- Mark J. Valencia; Oxford University Press
1996

The South China Sea Dispute: A Brief History- Sean Mirski

Asias Cauldron: The South China Sea and End of a Stable Pacific- Robert D.
Kaplan; Random House Publishers 2014

Arbitration Concerning the South China Sea: Philippines versus China- Shincun
Wu; Routledge 2016

The South China Sea: The Struggle for Power in Asia- Bill Hayton; Yale
University Press 2014

War or Peace in South China Sea- Timo Kimivaki; 2002

The UN Convention on Law of the Sea and the Maritime Disputes in the South
China Sea- Robert Beckman; American Journal of International Law Vol. 107
2013

UNCLOS and Ocean Dispute Settlement: Law and Politics in the South China
Sea- Nong Hong; Routledge 2012

Major Law and Policy Issues in the South China Sea- Keyuan Zou; 2014

A Study on the South China Sea Disputes- Shicun Wu; Hainan Publishing House
2005
RESEARCH METHODOLOGY

The researcher in this study shall adopt doctrinal approach to formulate this study. The
doctrinal approach shall be utilized as follows: Primarily, utilize primary sources of
international and national nature. Secondarily, gather and analyse secondary sources, which
include academic publications and articles, journal publications, relevant cases and official
web content.

HYPOTHESIS

The failure of the implementation of the PCAs award with regard to the Philippines v. China
arbitration case will set a negative precedent and will further complicate the South China Sea
dispute.
STATEMENT OF PROBLEM

There has been a failure on the part of international legal community to ensure that
international maritime dispute settlement is armed with an effective enforcement mechanism,
given the tangible nature of the interests concerned and how maritime trade directly affects
nation-States politically, economically and militarily.

It is very relevant in the present day context, due to the trends in the world order, the
ascendency of China with respect to other Asian players and strategic importance of the
contested region; as disobeying and rejecting the award of the Permanent Court of Arbitration
creates a precedent for any further disputes.

Through this paper the researcher would try to critically evaluate the importance of the South
China Sea, the origins of the relevant disputes, their evolution and growth, relevance in
modern times, reasons for and also analyse the Philippines v. China arbitration case, its
aftermath and the current scenario prevailing in the region.
TABLE OF CONTENTS

TITLE PAGE NO.

1. Background and Introduction

2. Geo-political trends prevalent in the region
3. Relevant Legal Instruments and the role of PCA
4. Legal Analysis of Philippines v. China
5. Conclusion and the Way Ahead
PART I:

A. BACKGROUND AND INTRODUCTION

The South China Sea is a marginal sea that is part of the Pacific Ocean, encompassing an area
from the Karimata and Malacca straits to the Strait of Taiwan of about 3,500,000 sq
kilometres (1,400,000 sq. miles).The areas importance largely results from one third of the
worlds shipping sailing through its waters and that it is believed to hold huge oil and gas
reserves beneath its seabed and is located south of China, east of Vietnam and Cambodia,
west of the Philippines, east of the Malay peninsula and Sumatra, up to the Strait of Malacca
in the west and north of the Bangka-Belitung islands and Borneo; this region and the
countries located therein are the primary parties involved in the various disputes that have
arisen with the passage of time. The South China Sea functions as the throat of the Western
Pacific and Indian Oceans- the mass of connective economic tissue where global sea routes
coalesce. The oil transported through the Malacca strait from the Indian Ocean, en route to
East Asia through the South China sea, is triple the amount that passes through the Suez
Canal and fifteen times the amount that transits the Panama Canal.

The islands of the South China Sea can be largely grouped into two island chains; the Paracel
islands are clustered in the northwest corner of the sea, and the Spratly islands in the
southeast corner. The claimants to the disputes have argued bitterly over the true history of
these island chains and waters. In any case, the issue was moot for most of the regions
history as the sea remained quiet for the first half of the 20th century, as can be seen by the
fact that no claimant occupied a single island in the entire archipelago at the end of the
Second World War. In 1946, China established itself on a few features in the Spratlys, and in
early 1947, also annexed Woody island, part of the Paracel islands chain, as the French and
Vietnamese settled for nearby Pattle island merely two weeks later. However, even at this
stage the South China Sea was not seen as a priority by the claimants. The next half century
saw accelerating interest, as in 1955 and 1966, China and Taiwan established a permanent
presence on several key islands, while a Philippine citizen-Thomas Cloma- claimed much of
the Spratly island chain as his own. This phase of island occupation was once again followed
by a cooling down period, but by the early 1970s, the claimants mobilized to scramble once
again, primarily because of the initial detection of oil and gas reserves in the sea. The
Philippines was the first to move, followed by China thereafter with a carefully coordinated
seaborne invasion of several islands. In the battle of Paracel islands, it wrested several
features from under South Vietnamese control, killing several dozen Vietnamese and sinking
a corvette in the process. Another decade of relative inaction was punctuated once again with
violence in 1988 when Beijing moved into the Spratlys and set off another round of
occupations by forcibly occupying Johnson Reef, killing several Vietnamese sailors in the
process. Tensions arose again in 1995 when China built bunkers above Mischief Reef in the
wake of a Philippine oil concession, and have been on the boil during the last decade due to
overt Chinese activity in the area which includes construction of and militarization of several
artificial islands and sandbars, constant maritime disputes that arise between the claimants in
matters of fishery, navigation, sovereignty etc., increasing militarization by affected
countries, and the presence of the global behemoth and current champion of the freedom of
the seas concept, i.e. the United States of America.

Many nations have urged Beijing to abide by the United Nations Convention on the Law of
the Sea (UNCLOS) which sets international standards for maritime zones of control based on
coastlines, territorial waters, continental shelves, Exclusive Economic Zones (EEZs),
artificial islands and their respective limits and established rules regarding the same. The
U.S., which has signed onto UNCLOS without ratifying it, often relies on the international
agreement to settle territorial disputes. At best, China has refrained, looking to reject arbitral
and international claims and looking to establish bilateral channels with the claimants; at
worst, it seems China has rejected the existing maritime world order as it looks to establish
itself as a leading world power.

The claimants continued to needle each other through demarches and notes verbales. In 2009,
Malaysia and Vietnam sent a joint commission to the Commission on the Limits of the
Continental Shelf setting out some of their claims. This unleashed a flurry of notes verbales
from the other claimants, who promptly objected to the aforementioned claims. In particular,
China responded to the joint commission by submitting a map containing the infamous nine-
dash line, which snakes around the edges of the South China Sea and encompasses all of the
Seas territorial features as well as the vast majority of its waters.

Since the publication of the nine-dash line, the region has grown increasingly concerned by
Chinas perceived designs on the South China Sea. In 2012, Beijing bore out some of these
concerns when it snatched Scarborough Shoal away from the Philippines. There was a
dispute about illegal Chinese poaching, and after a two month standoff, both parties agreed to
withdraw from the shoal. The Philippines did, whilst China did not and Philippine boats have
been excluded from the shoals waters since. In response to this escalatory move, Manila
filed an arbitration case against China on 22 January, 2013 under the auspices of the U.N.
Convention on the Law of the Sea (UNCLOS). The Philippine claims centred on maritime
law issues, although China maintains these cannot be decided without first resolving
territorial issues and claims. China has largely refused to participate in the proceedings,
although it has drafted and publicly released a position paper opposing the tribunals
jurisdiction. Additionally, Beijing has in recent times launched an accelerating land
reclamation campaign across the Sea. In at least seven locations, Chinese vessels have
initiated and continued with dredging projects and expansion of the land formations occupied
by China; most of the infrastructure being developed on the same is military, including
airstrips capable of receiving fighters and bombers.

The international tribunal at The Hague overwhelmingly backed the Philippines in the arbitral
proceeding, ruling that rocky outcrops claimed by China, some of which are exposed only at
low-tide, cannot be used as the basis of territorial claims. It also said some of the waters in
question are within the exclusive economic zone of the Philippines, because those areas are
not overlapped by an possible entitlement of China and that Philippines sovereign rights in
those waters had been violated as a result of interference with its fishing and petroleum
exploration and by the construction of the artificial islands and their subsequent
militarization. China has rejected the authority of the Courts ruling by upping the ante in
terms of reclamation and military activity in the disputed region, and also looking to discredit
the work of the Court by alleging bias due to a founder member being Japan- a regional rival
and non-claimant player to the Sea and its dispute. Although the case was raised by the
Philippines, it will affect all the claimant countries as it effectively punches a hole in Chinas
all-encompassing nine-dash demarcation line, even whilst China continues to brush aside the
concerns of the world order and pursues its own geo-political agenda; it effectively sets a
precedent and has established the present status quo. It also affects the non-claimant entities,
particularly the United States as large areas of the sea, deemed to be neutral international
waters, are being contested by China and hence the disputes arising out of the South China
Sea will play a significant role in the shaping future maritime trends and indeed, the future
world order.

B. CLAIMANTS IN THE DISPUTE

1. Philippines: The Philippines contended that the "nine-dotted line" claim by China is
invalid because it violates the UNCLOS agreements about exclusive economic
 zones and territorial seas. It says that because most of the features in the South China
Sea, such as most of the Spratly Islands, cannot sustain life, they cannot be given their
own continental shelf as defined in the convention.
2. Peoples Republic of China (PRC): China refused to participate in the arbitration,
stating that several treaties with the Philippines stipulate that bilateral negotiations be
used to resolve border disputes. It also accuses the Philippines of violating the
voluntary Declaration on the Conduct of Parties in the South China Sea, made in 2002
between ASEAN and China, which also stipulated bilateral negotiations as the means
of resolving border and other disputes. China issued a position paper in December
2014 arguing the dispute was not subject to arbitration because it was ultimately a
matter of sovereignty, not exploitation rights. Its refusal will not prevent the PCA
tribunal from proceeding with the case. After the award ruling, the PRC issued a
statement rejecting it as 'null' and having decided not to abide by the arbitral tribunal's
decision, said it will "ignore the ruling".
3. Taiwan: The arbitral tribunal has not invited Taiwan to join the arbitration, and no
opinion of Taiwan has been sought. The Philippines claimed that Taiping Island is a
rock. In response, President Ma Ying-jeou of Taiwan rejected the Philippines' claim
as "patently false". Taiwan invited the Philippines and five arbitrators to visit Taiping
Island; the Philippines rejected the invitation, and there was no response from the
PCA tribunal.
4. Vietnam: On 11 December 2014, Vietnam filed a statement to the tribunal which put
forward three points: 1) Vietnam supports the filing of this case by the Philippines, 2)
it rejects China's "nine-dashed line", and 3) it asks the PCA tribunal to take note of
Vietnam's claims on certain islands such as the Paracels.
5. Others: Brunei sent its own UNCLOS claim through a preliminary submission prior to
the arbitration. In May 2009, Malaysia and Vietnam, as well as Vietnam alone, filed
claims to the International Tribunal for the Law of the Sea with regard to the islands .
This was in relation to extending their claimed continental shelves and Exclusive
Economic Zones. The People's Republic of China rejected the claims since those
violate the "nine-dotted line". The Philippines challenged the Malaysian claim stating
that the claims overlap with the North Borneo dispute.
 PART II: GEO-POLITICAL TRENDS AND THE CURRENT SCENARIO
PREVALENT IN THE REGION

The South China Sea (SCS) connects the West Pacific with the Indian Ocean and is a
partially enclosed sea bordered by Vietnam to the west, Malaysia, Singapore and Indonesia to
the south, the Philippines and Brunei to the east and China as well as Taiwan to the north (see
map 1). The geopolitical significance of the SCS stems not only from its lucrative fisheries
and the vast gas and oil reserves that are believed to lie beneath its seabed, but also from the
fact that around 1/3 of the worlds ship based trade passes through its waters, including up to
80% of Chinas oil imports.

The currently most contentious territorial dispute concerns the Spratly archipelago whose
numerous land features are claimed in full by Vietnam, China and Taiwan, and partially by
the Philippines as well as Malaysia. The biggest island, Taiping (or Itu Aba), has been
administered by Taiwan since World War II, but the scramble for control of the Spratlys
began in earnest during the 1970s when especially Vietnam and the Philippines took hold of
most of the islets, rocks and reefs. The seizure and subsequent fortification of these land
features was largely triggered by seismic surveys at the time indicating the presence of
profitable off shore oil fields in the SCS. The PRC was a late arriver in this geopolitical
positioning game because of the long distance from mainland China to the Spratlys, the rather
primitive state of the PLA navy (the navy of Chinas Peoples Liberation Army) back in the
1970s and the fact that the PRC was still bogged down in the Taiwan Strait, preparing for
battle with the Kuomintang regime in Taipei. Instead, since the late 1950s China concentrated
on consolidating its position in the Paracels, whose two main island groups, the Amphitrite
and the Crescent, were back then occupied by China and (South) Vietnam respectively.

Since the beginning of the 2010s, however, the situation in the South China Sea has taken a
downward turn, ushering in the current climate of political tensions, assertive postures and
confrontational behavior among the littoral states, notably Vietnam, the Philippines and
China. Most observers have linked the observed changes to the emergence of a new strategic
outlook among the Chinese leadership, which in the academic literature is often described in
terms of Chinas new assertiveness on the international stage. Some of the most
controversial examples of Chinese assertiveness in the SCS include Chinas seizure of control
over the Scarborough Shoal in 2012, its heavy-handed deployment in 2014 of an oil rig
within the Exclusive Economic Zone (EEZ) of Vietnam and its recent land reclamations and
building activities in the Spratlys. Further complicating the situation is the emergence of an
increasingly manifest pattern of geopolitical rivalry between China and the United States in
the South China Sea. In late 2011, the Obama administration launched its so-called pivot to
Asia and the Pacific, pledging to expand Washingtons strategic presence in the region
politically, economically and militarily. Although not targeting China officially, the pivot
has been widely seen as a rebalancing act in response to the rise of China, meant to reassure
existing American allies as well as to cultivate new strategic partnerships in the region. Most
recently, Washington has started to conduct a series of high-profile FONOPs in the SCS to
challenge what it views as excessive maritime demands in the area, especially by China.

Map 1: The disputed archipelagos, in the South China Sea, are enlarged to make them more visible.
PART-III: LEGAL INSTRUMENTS RELEVANT IN THE DISPUTE AND THE ROLE OF
PERMANENT COURT OF ARBITRATION

The main instrument applicable in International Law and which is widely recognised by most
nation states and even ratified by a high number of those is the United Nations Convention on
the Law of the Seas (UNCLOS) which is the third edition of the Convention, coming into
force in 1982.

Since the nations party to the dispute have been tirelessly engaged in arriving at a diplomatic
solution to the problem various agreements have been drafted and a few even signed and
adopted by claimant and non-claimant states alike. But the poor enforcement of said
agreements has been a sign that the solution is not yet imaginable for certain Nation states.

A. United Nations Convention on the Law of the Seas (UNCLOS)

The preamble of the Convention reads, Prompted by the desire to settle, in a spirit of
mutual understanding and cooperation, all issues relating to the law of the sea and aware of
the historic significance of this Convention as an important contribution to the maintenance
of peace, justice and progress for all peoples of the world.
Thus by adopting these values the treaty seeks to contribute to the strengthening of
peace, security, cooperation and friendly relations among all nations in conformity
with the principles of justice and equal rights and will promote the economic and
social advancement of all peoples of the world.
The convention introduced a number of provisions. The most significant issues
covered were setting limits, navigation, archipelagic status and transit
regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed
mining, the exploitation regime, protection of the marine environment, scientific
research, and settlement of disputes.

B. South China Sea Agreement (2011)

On October 11, 2011, China and Vietnam signed an agreement aimed at resolving
their disputes over control of parts of the South China Sea. The maritime borders at
issue, over which Brunei, Malaysia, the Philippines, and Taiwan also have made
claims, cover an area that has the potential to produce both oil and natural gas. In
 recent months there have been frequent protests in Hanoi against China's position on
the South China Sea dispute.
The six-point agreement contains basic principles to be used to guide a resolution of
the dispute. These principles include maintaining friendly consultations to handle
maritime issues and make the South China Sea a peaceful, cooperative area, the
agreement states. The two sides should work to establish a maritime demarcation of
the mouth of the Beibu Gulf, as well as discuss joint development of the region. The
agreement also calls for cooperation in marine environmental protection, scientific
research, search and rescue operations, and disaster prevention and reduction. A
hotline will be created to facilitate prompt communication over maritime issues, and
meetings will be held twice a year.
Even though the agreement brought about a period of hope and resolve but since the
Peoples Republic of China that claims most of the features in the region decided not
to honor the agreement, the dispute soon gained the same fire that existed prior to the
signing of the agreement in Jakarta.

C. Role of Permanent Court of Arbitration

The PCA was established by the Convention for the Pacific Settlement of
International Disputes, concluded at The Hague in 1899 during the first Hague Peace
Conference. The Conference had been convened at the initiative of Czar Nicolas II of
Russia with the object of seeking the most objective means of ensuring to all peoples
the benefits of a real and lasting peace, and above all, of limiting the progressive
development of existing armaments.
When the Phillipines approached the Court in relation to the dispute, China made an
official press release that they were not going to participate in the proceedings
because the Tribunal has no jurisdiction over the issue. Even before the tribunal
announced its award on Jurisdiction and Admissibility, the Peoples republic of China
had withdrawn from the proceedings. But the Tribunal ound that it has jurisdiction to
consider the following seven Philippines Submissions. (Each number is the Philippines
Submissions number.) The tribunal reserved consideration of its jurisdiction to rule on Nos.
1, 2, 5, 8, 9, 12, and 14.
No.3 Philippines position that Scarborough Shoal is a rock under Article 121(3).
No.4 Philippines position that Mischief Reef, Second Thomas Shoal, and Subi Reef
are low tide elevations that do not generate entitlement to maritime zones.
 No.6 Whether Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide
elevations that do not generate any maritime entitlements of their own".
No.7 Whether Johnson Reef, Cuarteron Reef, and Fiery Cross Reef do or do not
generate an entitlement to an exclusive economic zone or continental shelf.
No.10 "premised on [the] fact that China has unlawfully prevented Philippine
fishermen from carrying out traditional fishing activities within the territorial sea of
Scarborough Shoal."
No.11 Chinas failure to protect and preserve the marine environment at these two
shoals [Scarborough Shoal and Second Thomas Shoal].
No.13 Philippines protest against Chinas purported law enforcement activities as
violating the Convention on the International Regulations for the Prevention of
Collisions at Sea and also violating UNCLOS.
Thus the PCA after deciding upon the question of jurisdiction and then subsequently
announced the final award on 12th July, 2016 based on the merits of the claims made
by Philippines as well as other claimant states. The final award has been analysed in
the next part of this paper (Part-IV).

Image: Seal of the Permanent Court of Arbitration

 PART IV
ANALYSIS OF PHILIPPINES V. CHINA CASE

Background

Map 2: Boundaries of multiple claimants in the South China Sea disputed region.

The South China Sea is a huge sea of 1.4 million square miles, bordered by nations that
contain approximately 2 billion people. About a third of the worlds shipping goes through its
waters, which also provide vast amounts of food and whose seabed is rich in oil and gas.
Scattered through the sea are small land featuresoften tiny, often underwater during high
tide. These fall into two main groupings, the Paracel Islands in the northern part of the sea,
and the Spratly Islands in the southern part. China, Taiwan, the Philippines, Vietnam, Brunei,
and Malaysia all claim sovereignty over some of these land features and waters, and the
claims conflict. China, through its nine-dash line map and many statements, has claimed at
the very least sovereignty over all the islands and rocks in the South China Sea and rights
over the adjacent waters. The other five stakeholders have conflicting claims over land
features that in turn produce numerous additional overlapping and conflicting claims over
adjacent waters and how they are used. Neither the vastness of the sea nor the smallness of
the disputed land specks has prevented an escalation in intensity in recent years. Concerns
about security and re-sources have driven much of the tension, and rival nationalisms in
stakeholder countries breathe fire on the waters.

UNCLOS is one of the worlds great international treaties, and its preamble begins with the
heroic statement expressing the desire to settleall is-sues relating to the law of the seaas
an important contribution to the maintenance of peace, justice and progress for all peoples of
the world. Unlike many other heroic efforts, this one is not a grand gesture, but rather a
tedious verbalization of human thoughts about endless minutia that, unaddressed, can
cumulatively cause much human misery.

A threshold question the case presented was whether the UNCLOS arbitration tribunal had
jurisdiction to decide these 15 claimsjurisdiction being the legal term to indicate that a
tribunal has the power to decide the substantive issues in a litigation, a question separate from
how the tribunal might decide the merits of the substantive issues if indeed it has
jurisdiction to decide those merits.

On October 29, 2015, the UNCLOS tribunal issued its much misunderstood 151 page ruling
on jurisdiction. The tribunal concluded that it indeed had jurisdiction over the Philippines
case but concluded that it had jurisdiction over only seven of these claims. It did not accept
jurisdiction over the other eight claims, including the critical claims that Chinas famous
nine-dash line is inconsistent with UNCLOS. Regarding this and the other eight claims, the
tribunal deferred decision on whether it had jurisdiction, concluding that the question of
jurisdiction was tied up with the merits and therefore should be postponed until its
decision on the merits.

China immediately denounced the jurisdiction ruling as null and void with no binding
effect on China, and accused the Arbitral Tribunal of having abused relevant procedures
and severely violated the legitimate rights that China enjoys as a State Party to the UNCLOS
and eroded the integrity and authority of the UNCLOS.1 It labeled the Philippines
initiation of the arbitration a political provocation under the cloak of law and again called

1
http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/ t1310474.shtml
on the Philippines to resolve its disputes with China through negotiations and
consultations.2

Over four days in November 2015, the arbitration tribunal heard oral arguments on the
merits. No one from China appeared or participated in the oral arguments. The tribunals
much-awaited decision in the case is expected sometime in May or June. Nations need to be
thinking through now how they will react, even though all must make conjectures about what
the tribunal will doalthough only a small number of people know the relevant law well
enough to be ready to understand the tribunals decision, much less understand the
significance of the decision or how it may affect the path forward in addressing the dangerous
problems in the South China Sea.

Limitations of the Tribunals Decision

President Obama and many others have understandably raised hopes that the tribunals
decision will be a major step forward in providing a law-based solution to the most
contentious issues in the South China Sea. Law-based approaches are peaceful, offer the
promise of fair and impartial application of rules, and can protect the weak as well as the
strong. In addition, through application of law, legal tribunals can also provide solutions to
issues that are otherwise unavailable because of political stalemate elsewhere.

However, an examination of the issues before the tribunal and its most likely decisions
demonstrate that the arbitration tribunal and law can make only a very limited contribution to
resolving the South China Sea crisis. Law will not save us from continuing to focus
predominantly on negotiations and, yes, power politics. Messaging after the tribunals
decision should not make the tribunals decision the main pivot point of the path forward,
which will need to focus most intensively on the major matters the tribunal will surely not
touch on and that must be urgently addressed by other means.

There are four basic reasons that the arbitration tribunal can make only a very limited
contribution:

2
Id. See also http://www.fmprc.gov.cn/mfa_eng/ xwfw_665399/s2510_665401/t1348632.shtml
 1. Despite much confusion in the media, all concede that the tribunal has no jurisdiction
to decide any issues of sovereignty over the islands and rocks in the South China
Sea, even though these sovereignty issues are the heart of the many controversies.

2. All concede that China was within its legal rights under Article 298 of UNCLOS after
ratifying the treaty in explicitly exempting it-self from compulsory dispute resolution
of a wide swath of issues concerning sea boundary delimitations (basically, sorting
out over-lapping maritime rights between nations), historic bays or titles, or
military activities, so the tribunal will not decide any of these contentious issues.

3. Assuming, as of course we should, that the tribunal will continue to play it straight in
deciding the legal issues presented, the Philippines is unlikely to win all of its 15
claims against China. The tribunal is likely to conclude that it lacks jurisdiction over a
number of the Philippines claims and to rule against the Philippines in some of the
other claims.

4. Even if the Philippines wins some or all of its 15 claims against China, and even
though an adverse decision would be binding against China, there is no
enforcement mechanism. Chinas non-participation in the proceedings on
jurisdictional grounds foreshadows the consequences of any adverse ruling against
China.

To establish these conclusions will require some immersion in underwater weeds of legal
detailto parse the Philippines legal claims one by one. Such weeds are the terrain of law
and exactly the ground on which law-based solutions are frequently found. No foreign policy
expert can call for law-based solutions to international disputes without facing up to what that
effort entails and what solutions are produced or not produced.
PART-V : CONCLUSION AND THE WAY AHEAD

The UNCLOS arbitration tribunals decision will be a foundational moment in the still-young
history of UNCLOS, in international law, in the contemporary effort to find law-based
solutions to international crises, and even in the new world order with a rising China.

What we are likely to see from the UNCLOS tribunal is an admirable call for the supremacy
of inter-national law, and the declarations of some law-based answers to the claims presented.
Yet the analysis above demonstrates that these declarations may be more limited than is
widely expected, and also may have a more fragile basis. UNCLOS is a major treaty, but it
covers only a very limited number of issues being contested in the South China Sea
excluding the most fundamental issues of sovereignty and sea boundary delimitations. Thus it
will provide only very few law-based and rules-based answers to these contested matters.

The tribunals decision will provide some structure to the ongoing contests by determining
whether certain land features are islands, rocks, or low-tide elevations. In the
negotiations that the parties always claim they want, these legal conclusions could reduce
some of the issues that need to be worked through. If the tribunal determines that Itu Aba is
an island, even though the tribunal will not be able to decide a number of the Philippines
claims because a maritime delimitation is involved, there will be more clarity going
forwardand, there are indeed international law standards for maritime delimitations that
will remain an important back-ground for negotiations that might take place. Most
importantly, if the tribunal rejects the lawfulness of the most expansive interpretation of
Chinas nine-dash line, that will put new pressure on China to clarify its claims and would at
least create a more firm international law context for addressing the claims within the nine-
dash line. The tribunals ruling would still leave China with very expansive, as well as still
dangerously contested, claims in the South China Sea, but it will have made a difference.

There will be other consequences from the tribunals ruling. The law-based nature of some
of the tribunals conclusions will themselves be revealed to rest on contestable multi-factored
judgments that demonstrate that the hardest questions of law are often inescapably
intertwined with policy choices and subjective assessments. Experienced lawyers and citizens
understand that law is not mathematics and that these sorts of judgments are part of what
judicial decision making in hard cases is, but their willingness to be bound by decisions
resulting from such a process is mostly explained by their acceptance of the legitimacy of the
particular tribunal.

In the Philippines v. China case, however, the UN-CLOS arbitration tribunal making these
law based judgments is itself of fragile legitimacy. One of the parties to the casethe most
populous country in the world and a global powerhas directly challenged its legitimacy
(This is hardly unprecedented in landmark cases reflecting powerful political forces. Students
of U.S. history may recall that in Marbury v. Madison3, the defendant Secretary of State
James Madison refused to appear before the U.S. Supreme Court, Madisons way of
demonstrating that the Jefferson Administration did not recognize the Supreme Courts
jurisdiction in that case). China has refused to participate by its own choice, but its non-
participation has inescapably skewed the facts and arguments before the tribunal in the
Philippines direction. No UNCLOS arbitration tribunal has ever considered a case of this
visibility. The tribunal is composed of five part-time arbitrators who were themselves
selected through an ad hoc process of subjective judgment. The UNCLOS arbitration system
is still young.

Yet the tribunal will act, and there is no doubt that under UNCLOS the tribunals decisions
are binding. Under law, it is not for China to have the final word on the arbitration
tribunals jurisdiction. In Article 288(4), UNCLOS itself provides that the tribunal has the
last word on its own jurisdiction. Similarly, under law, it is not for China to have the final
word on the correctness of the tribunals decisions on the merits. The tribunal has the final
word, but that final word does not necessarily mean the end of the plot. China may decide to
ignore the tribunal, and the tribunal has no mechanism for enforcing its own judgmentsno
police force or army, no sanctions system. Some have predicted that, if the tribunal decides
against China, it will lash out with even bolder actions in the South China Sea. All of this
creates problems for the Philippines, as well as risks for the system of international law itself.

3
5 U.S. 137 (1803)
And it may create problems for China, as other nations decide what messages to send as well
as what actions to take.

The United States has already been sending messages. President Obama, as noted above, has
stated that the parties are obligated to respect and abide by the upcoming arbitration
ruling.4 Other U.S. officials, as well as the statement issued at the conclusion of the recent
G7 meeting, declare that the tribunals decision is binding.5 This is all true. China is indeed
bound by the tribunals decision, and it is right to insist that China follow the decision when
announced. Moreover, it is appropriate to undertake shaming of countries that ignore
international law to try to create at the very least political pressure to comply and loss of
international stature for not complying.

The problem is that the United States is deeply handicapped as a credible messenger of
demands and shaming of China regarding UNCLOS. We have not ratified the treaty, one of
only 27 countries who have not done so. President Clinton signed the treaty, but under the
U.S. Constitution, the U.S. Senate must provide advice and consent by a 2/3 vote before the
treaty is ratified. The Senate has failed to do so. Presidents have followed most of the treatys
terms by treating those provisions as customary international law, and therefore not
requiring Senate ratification. Although we have a system of checks and balances and
separation of powers, we are one United States of America, and, what-ever presidents have
done to support UNCLOS, the United States of America has refused to ratify UNCLOS
because the U.S. Senate has refused to give its constitutionally required ratification. None of
this is to minimize the fact that China has ratified UNCLOS and therefore must comply with
its terms, but it is awkward, to say the least, for the United States to be leading the charge in
insisting that China comply with a treaty it has refused to ratify itself.

There is an even more awkward detail regarding U.S. statements demanding Chinas
compliance with the arbitration tribunals decision. Although U.S. presidents treat most of the

4
http://www.c-span.org/video/?404677-1/prescom/headlines/2015/12/22/1535338/full-text-tran- ident-obama-
news-conference-usasean-lead- script-merits-hearing-philippines-vs-china-case.

5
See, e.g., G7 Foreign Ministers Statement on Mar-itime Security, April 11, 2016,
http://eeas.europa. eu/statements-eeas/2016/160411_05_en.htm
substantive provisions of UNCLOS as customary international law and therefore binding
law, one thing U.S. presidents cannot do is to make the U.S. subject to the compulsory
remedial mechanisms of UNCLOS. No nation may sue us and bring us before an arbitration
tribunal at The Hague as a party-defendant because we are not a party to the treaty. We are
insisting that China behave as we ourselves could not be ordered to behave. If anything could
lead the U.S. Senate to ratify UNCLOS at last, perhaps this grave threat to U.S. moral
authority regarding Chinas unlawful conduct will be the stimulus. Ratifying UNCLOS is
now a central need of our national security and our stature in the global order.

For now, we will be at our strongest in speaking out in defense of UNCLOS and its legal
requirements, including the arbitration tribunals decision, if we continue what we did
recently at the G7 meeting and speak in concert with other countries that have ratified
UNCLOS and are subject to its compulsory remedies, rather than speaking alone.

The point of this research paper has been to indicate the limits of law in addressing the South
China Sea disputesnot to deny that law can play some role. Furthermore, the point of this
paper is certainly not to suggest that the United States and other countries of the world should
be passive or acquiescent in the face of Chinas bold moves in the South China Sea. These
are genuine territorial disputes of major importance, and China is using its power and wealth
to change the situation on the ground and at sea by occupying contested land features and
building on them (including new evidence of radar and surface-to-air missiles), deploying
more of its rapidly growing naval forces through the Sea, and explicitly and implicitly
threatening its neighbors. China is clearly seeking to increase its capacity to project military
force throughout the area. It is doing these things in an incremental way so that no single step
seems to be an overwhelming provocation or threat, but the overall advance and likely future
advances are of genuine concern. All the while China is talking about the need for
negotiations to address the problems, rather than legal mechanisms such as the UNCLOS
arbitration tribunal, but it has taken no significant steps to advance the path of negotiations.

The UNCLOS tribunals decision will leave the United States with policy choices similar to
those it has already been wrestling with in the South China Sea, but without an UNCLOS
tribunal as a potential law-based deus ex machina. U.S. policy on the South China Sea is
necessarily embedded in the larger challenging questions about our China policy and our
Asia policy more broadly. As Chinas capacities grow, its intentions remain unclear. The
most likely evolution is that China will continue to grow as a major regional military and
economic power, and even India will rightfully insist on maintaining its powerful regional
presence and major alliances in Asia, which have advanced Indian interests and also
contributed powerfully to the peace and prosperity of the Asia-Pacific region. The challenge
is to find a path for our two countries to coexist as major powers in the Asia-Pacific
consistent with protecting their legitimate interests. The hope is that we will find wider
converging interests that benefit both countries and the world at large. It is not foreordained
that we will either fail or succeed.

Regarding the South China Sea disputes, the most realistic path forward for Phillipines is to
more strongly encourage negotiations and at the same time project resolve through the use of
power in its multiple forms. On the negotiating front, the 2002 Declaration on the Conduct of
Parties, to which all still give lip service, provides a starting point framework that must be
reinforced to achieve a binding Code of Conductto develop paths for negotiations on the
underlying disputes, to strengthen tools to prevent unwanted and escalating military conflict,
and to address serious environmental issues. Both bilateral and multilateral negotiations need
to be explored vigorously. New approaches are needed to give China greater incentives to
negotiate with its neighbors to find workable solutions. Older ideas about sharing resources,
as well as deferring ultimate questions of sovereignty, still have value. China has on occasion
signaled a possible distinction between the Paracel Islands towards the north of the South
China Sea and the Spratly Islands to the southwith perhaps greater negotiating flexibility
on the latter. That too needs to be explored further.

Along with limits to law in the South China Sea, we must also recognize limits to
optimismbut the only way forward is to have enough optimism to create the possibility of
peaceful resolutions and to avoid the resolute pessimism that will surely be-come a self-
fulfilling prophecy.

*****