What Does the Philippines' UNCLOS Case Mean for Security in the South China Sea?



Since January 2013 the Philippines and China have been engaged in arbitration in the International Court of Justice (ICJ). The hearing was initiated by the Philippines to clarify China’s 9-dash line, to determine the legality of China’s occupation of islands in the South China Sea, and to clarify the Philippines own rights. The court case, however, far from moderating China’s behaviour in the South China Sea, has only further antagonised China. The arbitration is unlikely to lead to a successful resolution and will most likely lead to a further deterioration in Sino-Philippines ties.

The Philippines initiated the arbitration on 23 January 2013 and the Philippines submitted its memorial to the tribunal, and to China, on 30 March 2014. The memorial was 4000 pages long and included its analysis of applicable laws and evidence to back up its claims. China had until 15 December 2014 to submit its counter-memorial but refused to do so. China has maintained throughout the process that it will refuse to participate in the trial and will ignore any ruling.

China has previously opted out of compulsory dispute settlement under the United Nations Convention on the Law of the Sea (UNCLOS). China’s position is that it does not accept international arbitration over the South China Sea disputes and China believes that the Philippines’ decision to bring the case contravenes previous bilateral negotiation efforts between the two states. Throughout the trial China has maintained that it will continue to follow its policy of only engaging in in bilateral discussion with the Philippines to resolve the conflict.

Arbitrations started on 7 July at The Hague and ran until 13 July. China, in accordance with its stance that it “neither accepts nor participates in the arbitral proceedings” did not attend the negotiations and continued to pursue its policy to resolve the conflict in bilateral discussion with the Philippines.

On 30 October, after the conclusion of hearings and after deliberations by the court, the ICJ issued an award stating that it had jurisdiction to hear the territorial claims the Philippines had filed against China. In its ruling the ICJ rejected China’s claims that the disputes were about territorial sovereignty and stated that China’s non-attendance would not “deprive the tribunal of jurisdiction.” Although the court’s rulings are binding they are not enforceable and countries have ignored them in the past.

All indications are that China will, no matter what, ignore the findings of the tribunal. In a press release from the Ministry of Foreign Affairs following the ruling, the Ministry stated that the award is “null and void”, has “no binding effect on China” and would not “impact China’s sovereignty rights or jurisdiction over the South China Sea.”

On 30 November the tribunal concluded its hearings on issues related to merits. On the same day Albert F. del Rosario, the Philippines Secretary of Foreign Affairs, delivered his closing remarks to the court of arbitration. In his speech he praised the power of international law to resolve disputes, describing it as a “great equaliser” among states. He also accused China of holding the rights of other states and international law in “utter disregard”.

The Chinese Ministry of Foreign Affairs spokesperson responded with an equally inflammatory response, accusing the Philippines' instigated arbitration as being a “political provocation under the cloak of law” which is “not an effort to settle dispute but an attempt to negate China’s territorial sovereignty and maritime rights and interests in the South China Sea.”

Such rhetoric from both sides indicates that the tribunal, far from solving the feud between the two claimants, has only served to further inflame tensions.

Regardless of the outcome of the arbitration, the hearing will not solve the territorial dispute between China and the Philippines in the South China Sea. Although exiting UNCLOS would clearly harm China’s international legitimacy at the time when it is endeavouring to build several new regional institutions, China nevertheless will most likely ignore the ruling. The current court case, far from resolving any disputes, will lead to further tensions in the South China Sea and will continue the atrophying of the Sino-Philippines relationship.

Marie-Alice McLean-Dreyfus is the East Asia Fellow at Young Australians in International Affairs.

This article can be republished with attribution under a Creative Commons Licence. Please email publications@youngausint.org.au for more information.

Image Credit: stratman² (cropped) (Flickr: Creative Commons)

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