South China Sea

The Philippines Opens Its UNCLOS Case Against China

By Sean Mirski
Tuesday, July 14, 2015, 8:17 AM

Last week, Philippine Foreign Secretary Albert del Rosario made his opening statement before the tribunal overseeing Manila’s arbitration against China. (As regular readers will remember, the Philippines has brought its case under the auspices of the U.N. Convention on the Law of the Sea (UNCLOS). For additional detail, see here, here, and here.)

Significantly, Secretary del Rosario added some public detail about the nature and scope of the Philippines’s formal claims about China’s behavior in the South China Sea. He explained that Manila was bringing five claims. From Rosario's opening:

  • First, that China is not entitled to exercise what it refers to as “historic rights” over the waters, seabed and subsoil beyond the limits of its entitlements under the Convention;
  • Second, that the so-called nine dash line has no basis whatsoever under international law insofar as it purports to define the limits of China’s claim to “historic rights”;
  • Third, that the various maritime features relied upon by China as a basis upon which to assert its claims in the South China Sea are not islands that generate entitlement to an exclusive economic zone or continental shelf. Rather, some are “rocks” within the meaning of Article 121, paragraph 3; others are low-tide elevations; and still others are permanently submerged. As a result, none are capable of generating entitlements beyond 12M, and some generate no entitlements at all. China’s recent massive reclamation activities cannot lawfully change the original nature and character of these features;
  • Fourth, that China has breached the Convention by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction; and
  • Fifth, that China has irreversibly damaged the regional marine environment, in breach of UNCLOS, by its destruction of coral reefs in the South China Sea, including areas within the Philippines’ EEZ, by its destructive and hazardous fishing practices, and by its harvesting of endangered species.

Two points jumped out at me about the speech.

First, the Philippines stressed the “equalizing power of international law” over and over again. In particular, it pointed to UNCLOS as “allow[ing] the weak to challenge the powerful on an equal footing, confident in the conviction that principles trump power; that law triumphs over force; and that right prevails over might.” This “equalizing power” theme promises to be the leitmotif of its entire case.

Second, Manila is acutely aware of the jurisdictional hurdles facing its suit. Accordingly, Secretary del Rosario tried to assuage the tribunal’s fears of an extrajurisdictional decision through two means. Most directly, he spent considerable time outlining the Philippine’s jurisdictional argument. But he also directed the tribunal’s attention to the importance of the case, not only for the Philippines, but also for international law and the region. He argued that “it is not just the Philippines’ claims against China that rest in [the tribunal’s] capable hands . . . it is the spirit of UNCLOS itself.” That, he explained, was why the case had “attracted so much interest and attention,” including “the presence here today of representatives of Vietnam, Malaysia, Indonesia, Thailand and Japan to observe these critical proceedings.” And Secretary del Rosario fretted that “China’s assertion and exercise of its alleged rights in areas beyond its entitlements under UNCLOS have created significant uncertainty and instability in our relations with China and in the broader region.” Put together, these statements suggest that the Philippines wants the tribunal to realize that, jurisdictional niceties aside, it must rule on the merits in order to resolve this brewing dispute before it is too late.