VietNamNet Bridge – The Permanent Court of Arbitration (PCA) will rule on the lawsuit between the Philippines and China over the East Sea dispute (internationally known as the South China Sea) tomorrow. Whatever scenario takes place, the case will affect the face of the East Sea, the parties involved in the dispute and also Vietnam.
China’s works on an artificial island in the East Sea. Photo: WSJ
The lawsuit between the Philippines and China is the case settled by the PCA under Annex VII of the UN Convention on the Law of the Sea (UNCLOS).
To submit the case under this mechanism, in terms of procedures, the Philippines must meet the following conditions: (i) prove the existence of disputes regarding the interpretation and application of the UNCLOS between the Philippines and China; (Ii) the two sides exchange views on the settlement of disputes without achieving results and (iii) the two parties do not choose other dispute settlement mechanisms rather than the UNCLOS.
China said that the Philippines is not allowed to start proceedings against China because this country has not fulfilled the conditions.
However, the PCA, in its ruling on jurisdiction confirmed that the Philippines had completed the conditions on procedures and recognized this country’s right to unilaterally take legal proceedings against China.
The main content of the lawsuit between the Philippines and China
In terms of content, to bring the case to the PCA, the disputes must be related to the interpretation and implementation of the UNCLOS and must not be under the exception that the PCA does not have jurisdiction. The Philippines made 15 submissions against China, with the four main groups of issues:
(I) the illegality of U-shaped line of China
(Ii) Classification of features and identification of the waters for the nine features including: Scarborough, Fiery Cross Reef, Cuarteron Reef, Johnson South Reef, Mischief Reef, Subi Reef, Second Thomas Shoal, McKennan Reef (including Hughes Reef) and Gaven Reef. Accordingly, the Philippines argues:
– Scarborough, Fiery Cross Reef, Cuarteron Reef, and Johnson South Reef are rocks, which have the surrounding waters of up to 12 nautical miles only.
– Mischief Reef, Second Thomas Shoal, Subi Reef, McKennan Reef and Gaven Reef are submerged banks, not subject to claims of sovereignty and occupation. Of these, Mischief Reef and Second Thomas Shoal belong to the economic exclusive zone (EEZ) and continental shelf of the Philippines.
(Iii) China’s actions violated the privilege of fishing, oil and gas exploration of the Philippines in the EEZ and the continental shelf; the rights of the Philippines’ traditional fishing right in the territorial waters of Scarborough; the obligations of environmental protection, maritime safety and exacerbating the dispute.
(Iv) China must not repeat the violations and not declare the EEZ and continental shelf from the features in the Spratly Islands.
China said that the issues that the Philippine brought to the PCA are sovereignty and maritime delimitation disputes; therefore, they are not under the jurisdiction of the PCA.
In the judgment on juridiction, the court rejected China’s argument on sovereignty dispute and concluded that the court comes within the jurisdiction over 7 out of the 15 submissions made by the Philippines: (i) the classification of nine features, (ii) identification of the waters and the traditional fishing rights of the Philippines in Scarborough, (iii) violation of China in terms of environmental protection and maritime safety.
The remaining 8 submissions made by the Philippines, regarding: (i) the U-shaped line; (Ii) identifying Mischief Reef and Second Thomas Shoal in the EEZ and continental shelf of the Philippines; (Iii) other violations of China relating to oil and gas exploitation and fishing in the EEZ and continental shelf of the Philippines, and (iv) China not aggravating the dispute. This will be further considered and concluded in the decision on the contents of the lawsuit.
After the oral hearings in November 2015, the final judgment of the PCA may take place in two major scenarios.
The first scenario: the Philippines will win with the entire submissions.
The second scenario: the Philippines will win over the following submissions: (i) rejecting the validity of the U-shaped line, (ii) classification of 9 features, (iii) identification of the waters and the traditional fishing rights of the Philippines in Scarborough, and (iv) violation of China in terms of environmental protection and maritime safety.
The Philippines may not win the case in narrowing the disputed waters as the PCA may consider one of some features in the Spratly Islands having the EEZ and continental shelf.
Since then, problems on maritime delimitation will arise and the PCA has no authority to conclude whether the Mischief and Second Thomas Shoal belong to the EEZ and continental shelf of the Philippines or not and cannot come to conclusions about the violation of China.
Whether any scenario takes place, the case will certainly impact the face of the East Sea, the parties involved to the dispute and Vietnam.
The impact of the case on China
A spokesman of the Chinese Foreign Ministry on October 30, 2015 reiterated that China did not accept and engage in the lawsuit unilaterally initiated by the Philippines. He also affirmed that the ruling on the jurisdiction of the PCA has no legal value and is not binding with China. This view will certainly be pursued by China with the final judgment of the PCA.
If the second scenario becomes reality, China will indirectly have a legal basis to promote its activities in the East Sea, especially in the long term.
In preparation for the first scenario, China has promoted actions in the field to establish “what had already been done” to disable the PCA’s verdict.
If the first script happens, China is likely to react aggressively, escalating tension in the short term in order to prove its view of not accepting the PCA’s ruling.
Especially in the context of international law without enforcement, China will take actions such as promoting activities in the field of fisheries, oil and gas; construction on the sea; patrol, setting and enforcing the provisions of the domestic law of China on maritime, aviation, environment, scientific research, military operations ….
However, in the long term, China is likely to focus on consolidating its works on the occupied features in the Spratly islands, which are defined by the PCA as rocks, including: Johnson South Reef, Fiery Cross Reef and Cuarteron Reef; and simultaneously promoting activities in the Paracel Islands as the islands are beyond the scope of the PCA’s ruling.
The impact of the lawsuit to the other parties and the member countries of ASEAN
For Malaysia, due to the escalation of actions taken by the Chinese warships near the Luconia Shoal and China’s claims to this shoal, Malaysia is gradually changing its public attitude, which is more positive about the East Sea dispute. So if the lawsuit between the Philippines and China takes place under scenario 1, Malaysia can learn from the experience of the Philippines to sue China on the legal status of the James and Luconia Shoals in order to repel China’s claims off the EEZ and the continental shelf generated from Malaysia’s shores.
If the scenario 2 occurs and the waters of the features are not clarified, Malaysia can return to the quiet diplomacy policy to hopefully reach a compromise solution while still keeping peace in relations with China.
For Indonesia, the Indonesian Minister of Political, Law and Security Affairs said on November 11th 2015 that Indonesia may bring China’s “U-shaped line” claim to the court.
During the workshop on the East Sea situation held by the Institute of Southeast Asian Studies in Singapore on November 5-6, 2015, Indonesian Deputy Minister of Maritime Affairs also confirmed that Indonesia did not recognize the “U-shaped line” claims of China, and said that as the “U-shaped line” has not been determined, Indonesia does not acknowledge the overlap between the waters created by the “U-shaped line” and Indonesia’s Natuna waters.
However, whether any scenario occurs, the reaction of Indonesia will be moderate because China confirmed its goodwill to negotiate with Indonesia and in fact, China has never confirmed the existence of dispute with Indonesia. At the same time, Indonesia also wants to enlist Chinese capital to develop the maritime axis initiative to strengthen connection between the islands of Indonesia and between Indonesia and the region.
For other ASEAN countries, whether the lawsuit ends with a victory for the Philippines, these countries will not show a clear attitude as they do not have direct benefit from the East Sea dispute and do not want to offend China. Meanwhile, if the Philippines loses the case, other ASEAN countries will have grounds to support the view of China, calling for settlement of disputes through bilateral negotiations, joint development and management of the East Sea through signing the Code of Conducts (COC) in the East Sea.
The impact of the lawsuit on Vietnam
In legal terms, the nature of the case between the Philippines and China is not a case on the issue of sovereignty. Therefore, whether any party gains advantage after the ruling, the sovereignty dispute over the Spratly Islands will still be unresolved.
The essence of the lawsuit between the Philippines and China is to narrow the disputed waters through the four major legal arguments:
• Rejecting the validity of China’s historical claims from the “U-shaped line”.
• Narrowing the disputed waters to the 12 nautical miles range of the features which are rocks in the Spratlys Islands
• Placing the submerged features beyond 12 nautical miles of the islands into the EEZ and continental shelf of coastal states.
• From this, identifying the behaviors to realize the “U-shaped line” of China in the East Sea as violations of international law.
With the first scenario, under which the Philippines wins in rejecting the validity of the “U-shaped line,” it will generate overall positive impact for the coastal states, forcing China to make claims for the waters consistent with the provisions of the UNCLOS.
Also, if the PCA concluded that the features in Spraltly Islands are rocks, which have waters up to 12 nautical miles, then the disputed waters in the East Sea will be narrowed, and Vietnam will indirectly limit the disputed waters, pushing most of the disputed waters out off the EEZ and the continental shelf of Vietnam.
However, if the PCA concludes that there are one or more features in the Spratlys that have the ability to create the EEZ and continental shelf of up to 200 nautical miles, it is possible that part of the EEZ and the continental shelf of 200 nautical miles created from the coast of Vietnam will be considered as the disputed waters as they overlapwith the waters of islands of the Spratlys.
Politically, if the Philippines wins the whole case, the international community will have grounds to express their support to the Philippines and through which support Vietnam, to denounce the “U-shaped line” and China’s claims and illegal activities in the East Sea.
Conversely, if the Philippines does not win, the international community may make moderate response as the waters created by the features in the East Sea (occupying a large area of the East Sea) will be considered the disputed waters. Therefore they need measures to control and manage disputes.
On the field, whether scenario 1 or 2 happens, in the short term, China will continue escalation on the field to confirm the existence of the “U-shaped line” claim at sea and in the air.
In the longer term, China may step up measures in the field in the Paracel Islands as Paracel is beyond the scope of the PCA. This will create direct tension to Vietnam, making it difficult for Vietnam as China currently holds the actual management rights in the Paracel Islands, while the world and the region see this as a bilateral issue between Vietnam and China.
Dr. Nguyen Thi Lan Anh
Deputy Director of the Institute of the East Sea Studies.