china-philippine spratly claim

8/13/2019 China-Philippine Spratly Claim

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I. ABSTRACT

The West Philippine Sea dispute, involving China and the Philippines, has been a great

source of friction between the two states.

China is basing its alleged ownership over the entirety of the South China Sea, which

includes the West Philippine Sea, on historical accounts, and documents showing ownership to

the entire water mass. In effect, such claim makes the entire South China Sea a part of Chinas

internal waters.

The Philippines has claim over some portion of the disputed area. This claim is based upon

the United Nations Convention on the Law of the Sea (UNCLOS) wherein a coastal nation has

Exclusive Economic Zone (EEZ) 200 miles from the baseline in which said nation has the

exclusive right to exploit natural resources found within the EEZ.

With the brewing conflict and a maritime arms race happening between the contending

states, this issue has replaced the Middle East conflicts as a possible source for World War III

given the involvement and interest of the United States to expand its influence in Asia and ensure

the freedom of navigation in the area, and Chinas insistence on a bilateral approach, to the

exclusion of third parties like the United States or the United Nations, and Chinas saber rattling

approach against other claimants, makes this an urgent problem that must be resolved.

Based on information gathered throughout the web, it has been established that Chinas claim

is full of inconsistencies, false equivalencies, fallacies, all of which are backed up by Chinas

immense maritime weapons development spending and deployment of naval forces in the

disputed area.


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II. INTRODUCTION

The South China Sea is a marginal sea that is part of the Pacific Ocean encompassing an

area from the Singapore and Malacca Straits to the Strait of Taiwan of around 3,500,000 square

kilometers (1,400,000 sq mi). The area's importance largely results from one-third of the world's

shipping transiting through its waters, and that it is believed to hold huge oil and gas reserves

beneath its seabed.

It is south of mainland China and Taiwan, west of the Philippines, northwest of Sabah,

Sarawak (Malaysia) and Brunei, north of Indonesia, northeast of the Malay Peninsula (Malaysia)

and Singapore, and east of Vietnam.

With its economic and geopolitical importance, multiple claims by border countries

abound lead by China, who argues using a bilateral diplomatic approach, and by the Philippines

who wants international arbitration to settle the disputes basing it on the United Nations

Convention on the Law of the Sea (UNCLOS).

There are three issues in to be discussed in this research. The first is the basis of Chinas

claim, its alleged historical ownership of the South China Sea, the Philippines claim under the

UNCLOS, and lastly, to determine what has the greater weight in establishing a claim, supposed

historical rights or the UNCLOS.

Understanding Chinas claim and how those claims work relative to the UNCLOS is one

of the approaches made in this research. Available remedies for the Philippines will also be

looked at since, as of January 22, 2013, the Philippines have already filed arbitration proceedings

against China. Whether or not China will participate in the proceedings remains to be seen.

The arbitration petition filed by the Philippines is an important turning point. With

judicial efficiency, and barring any hostile attempts by China to derail, if not, to stop, the

proceedings, this arbitration will settle who has exclusive control of the vast natural resources

found in the disputed area.

As it stands, the Philippines can let the wheels of international justice turn. Without

sufficient military capability which can offset Chinas military advantage, the Philippines must

resort to international arbitration, and at the worst possible scenario, must ask the United States

for help in containing Chinese aggressive behavior.


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III. METHODS

Most of the information gathered here is sourced from internet searches. The South China

Sea controversy is very much talked about in international circles that therere a lot of resource

materials to be gathered, study, and apply in this particular scenario.

From local sources, like online newspapers, to foreign news reports and commentaries,

there are a lot of information floating around. Its just a matter of finding what is needed and

what can be used to advance the purpose of this study: to identify the source of Chinas claim

and what remedies are available to the Philippines.

As most of the information gathered are from third parties, the impression that the

proponent gets is that there are hostile reactions against Chinas attitude regarding the South

China Sea dispute. From its insistence on a bilateral approach, using to its advantage its immense

economic and military might to gain leverage, to blatantly disregarding the UNCLOS, which

China is a signatory, it is clear from the information gathered that China has no intention of

letting go of its indisputable sovereignty over the entire South China Sea.

The information gathered can be used to dissect the path that China may undertake if the

arbitration will not be in its favor. From a third party perspective on Chinas supposed historical

rights to the South China Sea, it is clear that China will go to any lengths to maintain the status

quo.

Sorting and quantifying all the available resources, the proponent chose the needed

information based on its impact, relevance, and historical accuracy to the subject matter at hand.

Applying concepts of a case digest, the information have been filtered and only those of

relevance and importance are shown in this study.


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IV. RESULTS

This illustration shows the extent of Chinas claim to the entire South China Sea . As

shown in the picture, China is asserting indisputable sovereignty within the line.

CHINAS CLAIM

China claimed sovereignty over 90% of the water and all the islands in the South China

Sea by drawing a nine-dash line covering 90% of that sea, prompting her neighbors to protest

that her claim contradicts international law, specifically the 1982 United Nations Convention on

the Law of the Sea (UNCLOS).

China justified her exaggerated claim on the South China Sea by arguing that ancient

Chinese texts mentioned certain islands in the South China Sea, proving that Chinese people


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were the first to navigate that sea and the first to discover the islands in the area, that China was

the first country to exercise jurisdiction over the islands and that the South China Sea was

Chinas historic water. China further argued that in 1947, when China published a map of that

sea with an eleven-dash line (predecessor of the nine-dash line), nobody protested, proving that

the world had accepted Chinas claim. However, close examination shows that Chinas

arguments are baseless.

NamViet News refuted the historical claim of China on a lot of points:

1. The first point, regarding Chinas 1947 map of the sea, was not protested by anyone

because it was ignored. The map has as much legal weight as the traditional Chinese

political thought which said that the world (All-under-heaven) is under the authority of

Chinese emperors.

2. Countries with historical borders with the Arctic Ocean formed the Arctic Council to

divide the Arctic natural resources according to the rules of the UNCLOS. China, without

any historical borders to the Arctic, petitioned to join the Arctic Circle in order to have a

share of the resources found therein arguing that the Arctic Circle common heritage for

all of humankind. If the Arctic Ocean is a common heritage for all of humankind, then

the South China Sea is a common heritage for all the peoples who live on its shores, not

only for China.

3. Peoples of the Austronesian language family, more specifically the Malayo-Polynesian

branch, were the first to navigate the South China Sea. Between 5000-2500 BC, they

crossed the South China Sea to populate the Philippines, Indonesia and Malaysia. From

Southeast Asia, they crossed the Pacific Ocean to populate Melanesia and Micronesia by

1200 BC, Polynesia by 1000 BC, Easter Island by 300 AD, Hawaii by 400 AD and New

Zealand by 800 AD. Since the Austronesian peoples (ancestors of the Filipinos,

Indonesians and Malaysians) were the first to navigate the South China Sea, they were

the first to discover the islands in the area and to fish in the associated waters. Though

they did not invent writing to record their discovery, it would be ludicrous to deny their

discovery of the islands so close to the Philippines and Indonesia in light of the fact that

they were able to discover the various islands in the vast Pacific Ocean.

4. The South China Sea has always been an international waterway since prehistory. Indian

traders navigated that sea early in prehistory, introducing Indian philosophies to


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Southeast Asia, leading to the formation of many Indianised states on Islands Southeast

Asia in ancient time. One of those states was Srivijaya, located on Indonesia in the 7th

century and exercised prominent maritime activities in the South China Sea.

5. Attacking precedent, NamViet states: even if Chinese people were the first to navigate

the South China Sea (not true), China cannot claim sovereignty over the water that is

used by many other countries. The Philippines, Indonesia and Malaysia do not claim

sovereignty over the South China Sea, the Indian Ocean and the Pacific Ocean even

though their Austronesian ancestors were the first to navigate those waters. Norway does

not claim sovereignty over the Norwegian Sea even though the Norsemen (Vikings) were

the first to navigate that water to populate Iceland and Greenland in the 9th century.

Portugal does not claim sovereignty over the water off the West African coast, the water

around the Cape of Good Hope and the Indian Ocean even though Portuguese under

Bartolomeu Diaz and Vasco da Gama were the first to navigate those waters in 1488 and

1498. Spain does not claim sovereignty over the Atlantic Ocean, the Magellan Strait and

the Pacific Ocean even though Spaniards under Christopher Columbus and Ferdinand

Magellan were the first to navigate those waters in 1492 and 1521. Russia does not claim

sovereignty over the Bering Sea even though Russians under Vitus Bering were the first

to navigate that water in 1741.

6. Ancient Chinese texts which mention the South China Sea islands do not describe

discovery of the islands but only describe general knowledge about the islands,

knowledge shared among the fishermen, merchants and pirates from various countries

who navigated that sea since prehistory. Chinese writers were the first to write about the

South China Sea islands because China invented writing earlier, not because Chinese

people were the first to navigate that sea or the first to discover the islands. (Source not

provided)

7. Ancient Chinese texts which mention the South China Sea islands mention those islands

as foreign lands, not as Chinas territories, and do not describe which activities the

authority of ancient China exercised on the islands. Therefore, there is no proof of

Chinas jurisdiction over the islands. In the case of Scarborough shoal (part of the

Philippines claim in the disputed area), China argued that Kublai Khans officials were

the first to map out and to establish jurisdiction over those islands in 1279. However,


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Kublai Khan was the Great Khan of the Mongol Empire who conquered China. If any

country can inherit Scarborough shoal from Kublai Khan, it is Mongolia, not China.

8. Official maps of the Yuan Dynasty and Ching Dynasty, including but not limited to Da

Qing Zhi Sheng Quan Tu (published in 1862) and Huang Chao Yi Tong Yu Di Zen Du

(published in 1894), show that the southernmost extent of China ends at Hainan islands.

9. The Chinese empire originated on the Yellow river basin and eventually conquered many

lands and peoples, including Tibet and Sinkiang, which is why China is a multiethnic,

multi-languages country. At the time when China allegedly discovered the South China

Sea islands, Chinas border on the mainland was not what it is today, Tibet and Sinkiang

were independent countries of the Tibetans and the Uyghurs, respectively. The Tibetans

and the Uyghurs are demanding self-determination. Three dozens Tibetan monks have

burned themselves to death to draw attention of humanity to the sufferings of their people

under Chinas rule. If China is serious about its historical claim, it should return to its

historical border on the mainland, return Tibet and Sinkiang to the Tibetans and the

Uyghurs, respectively.

As pointed out by NamViet, news from Vietnam, another claimant to the parts of the

South China Sea, there are a lot of consistency issues, historical precedents, and legal

implications to Chinas claim to the South China Sea. Which, as said in the report, makes China

wary of any international arbitration since, from the face of it, Chinas claim are very hard to

prove in the courts of law.

Another publication which assesses Chinas historical rights are from the Diplomat,

specifically the article published by Mohan Malik, Professor at Asia-Pacific Center for Security

Studies, Honolulu. Though his piece is not meant to be an encompassing idea on whats

happening in the South China Sea, he sheds a little light in the problems of Chinashistorical

claim.

Since the end of the Second World War, China has been redrawing its maps, redefining

borders, manufacturing historical evidence, using force to create new territorial realities,

renaming islands, and seeking to impose its version of history on the waters of the region. The

passage of domestic legislation in 1992, Law on the Territorial Waters and Their Contiguous

Areas, which claimed four-fifths of the South China Sea, was followed by armed skirmishes

with the Philippine and Vietnamese navies throughout the 1990s. More recently, the dispatch of


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large numbers of Chinese fishing boats and maritime surveillance vessels to the disputed waters

in what is tantamount to a peoples war on the high seas has further heightened tensions.

Toquote Sujit Dutta, Chinas unmitigated irredentism [is] based on the...theory that the

periphery must be occupied in order to secure the core. This is an essentially imperial notion that

was internalized by the Chinese nationalistsboth Kuomintang and Communist. The current

regimes attempts to reach its imagined geographical frontiers often with little historical basis

have had and continue to have highly destabilizing strategic consequences.

Apparently, one reason Southeast Asians find it difficult to accept Chinese territorial

claims is that it would amount to acceptance of the notion of Han racial superiority over other

Asian races and empires. Says Jay Batongbacal of the University of the Philippines law school:

Intuitively,acceptance of the nine-dash line is a correspondingdenial of the very identity and

history of the ancestors of the Vietnamese, Filipinos, and Malays; it is practically a modern

revival of Chinasdenigration of non-Chinese as barbariansnot entitled to equal respect and

dignity as peoples.

The history question is very complex and defies an easy explanation. If historical

claims had any validity then Mongolia could claim all of Asia simply because it once conquered

the lands of the continent. There is absolutely no historical basis to support either of the dash-line

claims, especially considering that the territories of Chinese empires were never as carefully

delimited as nation-states, but rather existed as zones of influence tapering away from a civilized

center to the periphery of alien barbarians. This is the position contemporary China took starting

in the 1960s, while negotiating its land boundaries with several of its neighboring countries. But

this is not the position it takes today in the cartographic, diplomatic, and low-intensity military

skirmishes to define its maritime borders.

Historical rights are difficult to prove, especially those dating back in the B.C. era.

Chinas claim, as shown in these 2 articles, clearly show that Chinas claim cannot be

substantiated and full of fallacies making it difficult to prove its historical rights before the courts

of law.

To understand the Philippine claim to the West Philippine Sea, a part of South China Sea,

UNCLOS, and the relevant UNCLOS provisions must provided.

The United Nations Convention on the Law of the Sea is the international agreement that

resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which
http://www.idsa.in/strategicanalysis/RevisitingChinaTerritorialClaimsonArunachal_sdutta_0708http://www.defensenews.com/article/20120908/DEFREG03/309080001/Tension-Rises-Over-China-8217-s-Disputed-Sea-Claimshttp://www.defensenews.com/article/20120908/DEFREG03/309080001/Tension-Rises-Over-China-8217-s-Disputed-Sea-Claimshttp://www.defensenews.com/article/20120908/DEFREG03/309080001/Tension-Rises-Over-China-8217-s-Disputed-Sea-Claimshttp://www.defensenews.com/article/20120908/DEFREG03/309080001/Tension-Rises-Over-China-8217-s-Disputed-Sea-Claimshttp://www.idsa.in/strategicanalysis/RevisitingChinaTerritorialClaimsonArunachal_sdutta_0708


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took place between 1973 and 1982. The Law of the Sea Convention defines the rights and

responsibilities of nations in their use of the world's oceans, establishing guidelines for

businesses, the environment, and the management of marinenatural resources.The Convention,

concluded in 1982, replaced four 1958 treaties. UNCLOS came into force in 1994; a year

afterGuyanabecame the 60th nation to sign the treaty.[1]

As of October 2012, 164 countries and

theEuropean Union have joined in the Convention. However, it is uncertain as to what extent the

Convention codifiescustomary international law.
http://en.wikipedia.org/wiki/Natural_resourcehttp://en.wikipedia.org/wiki/Treatieshttp://en.wikipedia.org/wiki/Guyanahttp://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea#cite_note-history-1http://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea#cite_note-history-1http://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea#cite_note-history-1http://en.wikipedia.org/wiki/European_Unionhttp://en.wikipedia.org/wiki/Customary_international_lawhttp://en.wikipedia.org/wiki/Customary_international_lawhttp://en.wikipedia.org/wiki/Customary_international_lawhttp://en.wikipedia.org/wiki/European_Unionhttp://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea#cite_note-history-1http://en.wikipedia.org/wiki/Guyanahttp://en.wikipedia.org/wiki/Treatieshttp://en.wikipedia.org/wiki/Natural_resource


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The above illustration shows how and to what extent does a coastal state enjoys the

benefits of the natural resources found within its 200 nautical mile Exclusive Economic Zone

(EEZ).

The dark green portions show countries that signed and ratified the UNCLOS. Note that

both China and the Philippines are signatories and ratified the said convention. Light green parts

are countries that signed the UNCLOS but never ratified it. The grey areas are countries that

never signed nor ratified the Convention.

The Philippines claim extends to the legally mandated extent as provided by the

UNCLOS. The advent of Chinese intrusion in to the Philippines 200 mile EEZ sparked thehostility between them until the Philippines filed a case against China in an ad hoc arbitration in

accordance to Annex VII of the UNCLOS on January 22, 2013.

UNCLOS sets forth inPart XV rules for the resolution of disputes between State Parties

arising out of the interpretation or application of UNCLOS. Pursuant to Article 287(1) of

UNCLOS, when signing, ratifying, or acceding to UNCLOS, a State may make a declaration

choosing one or more of the following means for settling such disputes:

the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany; the International Court of Justice in The Hague, The Netherlands;

ad hocarbitration (in accordance withAnnex VII of UNCLOS); or

a special arbitral tribunal constituted for certain categories of disputes (establishedunderAnnex VIII of UNCLOS).
http://www.un.org/Depts/los/convention_agreements/texts/unclos/part15.htmhttp://www.un.org/Depts/los/convention_agreements/texts/unclos/annex7.htmhttp://www.un.org/Depts/los/convention_agreements/texts/unclos/annex8.htmhttp://www.un.org/Depts/los/convention_agreements/texts/unclos/annex8.htmhttp://www.un.org/Depts/los/convention_agreements/texts/unclos/annex7.htmhttp://www.un.org/Depts/los/convention_agreements/texts/unclos/part15.htm


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Pursuant to Article 287(3) of UNCLOS, arbitration under Annex VII is the default means

of dispute settlement if a State has not expressed any preference with respect to the means of

dispute resolution available under Article 287(1) of UNCLOS (and has not expressed any

reservation or optional exceptions pursuant to Article 298 of UNCLOS). Likewise, pursuant to

Article 287(5) of UNCLOS, if the parties have not accepted the same procedure for the

settlement of the dispute, arbitration under Annex VII is the default means of dispute settlement

(again subject to same exceptions or reservations pursuant to Article 298).


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The illustration shows the extent and distance from the baseline where the EEZ is in

effect. It also contains the reason why there are several disputes in the area, the existence of vast

sea and mineral resources located therein.

CHINAS RIGHTS VS THE UNCLOS

As illustrated in the first few chapters, Chinas claim to the entirety of the South China

Sea has no basis and full of inconsistencies. As a signatory, albeit with conditions, China has to

respect whatever treaty stipulations provided for in the UNCLOS.

Although the UNCLOS respects historical claims to areas beyond the EEZ of said

country, it does not change the fact that the Chinese designs are hampering regional growth and

provides economic and military jitters across the region.

Claims based on shaky historical grounds are not sufficient to wantonly disregard the

UNCLOS provisions that were ratified by China.

Chinese assertions based on historical claims must be substantiated by a clear historic

title. It should be noted that under public international law, historical claims are not historical

titles. A claim by itself, including historical claim, could not be a basis for acquiring a territory.

Under international law, the modes of acquiring a territory are: discovery, effective occupation,

prescription, cession and accretion. Also, under public international law, for a historical claim to

mature into a historical title, a mere showing of long usage is not enough.

Other criteria have to be satisfied, such as that the usage must be open, continuous,

adverse or in the concept of an owner, peaceful and acquiesced by other states. Mere silence by

other states to ones claim is not acquiescence under international law. Acquiescence must be

affirmative such that other states recognize the claim as a right on the part of the claimant that

other states ought to respect as a matter of duty. There is no indication that the international

community has acquiesced to Chinas so-called historical claim.

Naming and placing on maps are also not bases in determining sovereignty. In

international case law relating to questions of sovereignty and ownership of land features, names

and maps are not significant factors in the determination of international tribunals determination

of sovereignty.

Many of the findings in this study came from third party observers, other claimants, and

Philippine sources. There was a difficulty in locating sources from China to have a balanced


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view on the study. What is present during the search is Chinas exaggerated historical claim,

Chinas refusal to accept and participate in the arbitration, andChinas insistence on a bilateral

approach to the problem.

V. DISCUSSION

Based on the observations, it is clear that China will never let go of its sovereignty over

the disputed area. With shaky historical basis, inconsistent presentation of their historical claims,

and yet possessing tremendous economic and military might, it is evident that China will not be

really affected even with an adverse ruling by the Ad Hoc Trbiunal.

The fact that the UNCLOS has no means of enforcing their decision, based on the

reports, articles, and commentaries observed, it will be a test of the entire UNCLOS treaty as far

as dispute resolution goes. Add the fact that China, as a member of the UNs Security Council

with veto power, can hamper any military or economic sanctions that the tribunal can sanction in

case the dispute is resolved in favor of the Philippines.

In summary, as presented by the studies in the previous chapters, Chinese claims over the

entire South China Sea are marred with inconsistencies and fallacies. And with China refusing to

participate in the arbitration proceedings, electing instead a bilateral approach, the Philippines,

with its gross disadvantage in terms of economic and military might, has no other recourse but to

do what it did, which personally the proponent agrees. The filing of an arbitration case before the

UNCLOS is the only reasonable and feasible way to obtain the relief prayed for.

The proponent therefore concludes that, Chinas claim cannot stand in the eyes of

international law. But with the evident deficiency in terms of economy and military of the

Philippines, the latters legal claim cannot be exercised without international support.

There is also the matter that should China get an adverse ruling by the Ad Hoc Tribunal,

theres no one who can stop China from withdrawing from the UNCLOS and pursue a unilateral

approach in resolving the dispute. Hopefully such action by China will not materialize, another

set of questions come to mind. Is the Philippines ready to face a China that is no longer bound by

the UNCLOS? Is the Philippines ready and willing to accept an adverse judgment by the Ad Hoc

Tribunal? How would the Philippines react to a Chinese unilateral approach to settle the dispute?


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In the broader context, the results show that Chinas refusal to participate in the

arbitration proceedings can equate to Chinas refusal to abide by international law. In the South

China Sea dispute, there are other claimants aside from the Philippines. Taiwan, Malaysia,

Indonesia, Vietnam, Thailand, etc. An adverse ruling for China in the Sino-Philippine dispute

will have repercussions to the other claimants, especially to those who have already concluded a

treaty of joint exploration with China. Although their rights will not be impaired, it can make

other claimant parties wary of Chinas reaction and be mindful about future maritime relations

with China.

SOURCES:

http://www.interaksyon.com/article/53321/ph-finally-files-case-vs-china-before-unclos-tribunal-over-disputed-territories

http://www.academia.edu/1192973/Dispute_Settlement_Provisions_of_UNCLOS

http://namvietnews.wordpress.com/chinas-rise-is-a-big-reason-to-ratify-the-law-of-the-sea-

convention/refuting-chinas-nine-dash-claim/

http://www.thechinastory.org/2013/04/the-paradox-of-the-south-china-sea-disputes/

http://thediplomat.com/2013/08/30/history-the-weak-link-in-beijings-maritime-claims/4/

http://en.wikipedia.org/wiki/South_China_Sea

http://opiniojuris.org/2013/01/23/will-china-participate-in-the-unclos-arbitration-with-the-philippines/

http://kluwerarbitrationblog.com/blog/2013/08/28/an-update-on-the-philippines-china-unclos-arbitration/

http://www.pca-cpa.org/showpage.asp?pag_id=1288

http://globalnation.inquirer.net/34031/ph-sovereignty-based-on-unclos-principles-of-

international-law

china-philippine spratly claim

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