South China Sea Dispute: To Be Continued

The Permanent Court of Arbitration has decided the dispute between the Philippines and China regarding the South China Sea can be heard on its merits. This is the first instance of an international dispute settlement mechanism hearing the escalating dispute which will be significant in its findings in the midst of intensifying frictions in the region.

On October 29 the Hague-based arbitral tribunal unanimously decided it had jurisdiction to hear the claims brought to it by the Philippines in relation to the South China Sea dispute. It rejected the claims by China that the dispute was beyond the tribunal’s jurisdiction because it was a matter of sovereignty. The Tribunal decided that the Philippines’ concerns regarding the interpretation of the UN Convention on the Law of the Sea could be argued in the merits proceedings.

The dispute follows the long-standing claims by Beijing to the Spratly Islands and the Paracel Islands in the South China Sea, citing a claim going back to the Ming dynasty, which ruled from 1368-1644. Recently tensions have escalated as a result of China’s construction of artificial islands on the reefs and asserting sovereignty over them. The region has been hotly contested by a number of states including Malaysia, Vietnam, and Brunei because of its resource-rich areas and critical shipping routes.

The tribunal is not a court however. It serves purely to assist in temporary arbitration issues and was initially established for the purpose of resolving disputes between states. Moreover, the Permanent Court privately hears disputes and is renowned for its closed-nature. Arbitration tends to be an effective international dispute settlement tool because the parties decide on the matters they prefer to be settled and the arbitrators selected by the parties themselves are generally experts in their respective fields. It tends to be more flexible and less formal than the International Court of Justice, based next door to the Permanent Court. Currently there are 117 countries party to the Permanent Court of Arbitration.

However, China has refused to accept or participate in the proceedings. In a press release in December 2014, China stated that any proceeding in the Permanent Court would be invalid as the bilateral treaties between China and the Philippines stipulated the use of bilateral negotiations to resolve border disputes. However, in the jurisdictional proceedings of the case, it was held that China’s refusal to participate did not prevent it from hearing and deciding the matter.

The tribunal will hear arguments from Manila refuting various assertions by the Chinese. Firstly, the tribunal will decide on the status of the nine-dash line claim, seeking a ruling on whether China is entitled to the ‘historic rights’ it claims. Secondly, the tribunal will clarify whether certain features used in claims are properly characterized as islands, rocks, low tide elevations, or submerged banks under the UN Convention on the Law of the Sea. Lastly, the tribunal will decide on whether the activities conducted by China in the South China Sea have violated or infringed the Philippines’ sovereign rights and freedoms under the Convention.

No dates have been set, but the matter will likely be heard in mid-2016. Any outcome will have substantial implications for the conduct of relations in the fragile and volatile area.