South China Sea Arbitration Background and History
South China Sea Arbitration Background and History
South China Sea Arbitration Background and History
The South China Sea is a semi-enclosed sea in the western Pacific Ocean, with an
area of almost 3.5 million square kilometers. It lies to the south of China; to the west of
the Philippines; to the east of Vietnam; and to the north of Malaysia, Brunei, Singapore,
and Indonesia. It is of great importance not only to the Southeast Asian states, but to the
whole international community. Through its waters leads one of the world’s main
shipping routes, the area is rich in oil and gas reserves in the seabed and the subsoil, and,
also has wide grounds for fisheries. Its southern portion is also the location of the Spratly
Islands, a constellation of islets and coral reefs, existing just above or below water, that
include the peaks of undersea mountains rising from the deep ocean floor. Long known
ground”, the Spratly Islands are the site of longstanding territorial disputes among some
Among the range of complex territorial disputes, the most troublesome and
incendiary is the South China Sea dispute. Disputes over Southeast Asian sovereignty
involve numerous countries across the region. China has been involved in the majority of
the direct clashes between rival claimants in the South China Sea dispute. The Paracel
Islands are disputed by China, Taiwan and Vietnam. The Spratly Islands are disputed by
China, Taiwan, Malaysia, The Philippines, Vietnam, and Brunei. The Scarborough Shoal,
just to the west of the Philippines, which is sometimes considered to be part of the
Spratly Islands, is claimed by The Philippines, China and Taiwan. The maritime
boundaries of the Gulf of Tonkin are also disputed by China and Vietnam. Apart from
national pride, access to fisheries and oil and gas resources is at also stake. The area is
In 1974 and 1988, there were major naval clashes between China and Vietnam
over the Paracel and Spratly Islands. More generally, China has on occasions forced non-
Chinese fishing vessels out of parts of the South China Sea that are in dispute, sometimes
fining them. China also has a history of pressurizing foreign oil companies from doing
exploratory work in the area in co-operation with other countries. The relationship
between China and Vietnam is perhaps the most volatile of those between the rival
Nobody believes that either wants to go to war over it. Trade between Vietnam
and China was worth over $40 billion in 2012 and continues to rise. But Vietnam is
engaged in a complex balancing act, maintaining relations with China while cultivating
The last six years or so have seen rising tensions over rival claims in the South
China Sea. The countries involved in the dispute have been strengthening their military
capabilities, with some also exploring legal avenues. In addition, there have been
In 2009 Malaysia, The Philippines and Vietnam filed papers with the United
Nations Commission on the Convention on the Law of the Sea (UNCLOS), formalizing
their legal claims to control over parts of or all of the South China Sea. China also set out
“national interest” in maintaining respect for international law in the South China Sea.
Soon after Clinton’s statement, it was reported that China had expanded its “core national
interests” to include, for the first time, the South China Sea, although one analyst
suggested at the time that this may have been a misunderstanding of what Chinese
officials had said. In August 2010 a Chinese expedition planted a flag on the ocean floor
There was a rise in tensions between China and ASEAN member states in the
region during the first half of 2011. In July 2011 the two parties agreed ‘cooperation
guidelines’ for implementing the Declaration. These and other diplomatic efforts led to a
lowering of tensions. In November 2011, China proposed that a legally binding Code of
Conduct in the South China Sea should be negotiated. ASEAN member states responded
In April 2012 the Philippines' naval forces intercepted twelve Chinese fishing
vessels in the Scarborough Shoal, finding what they viewed as illegally fished marine life
on board. For several months, there was a standoff in the area between the two countries,
but by the time it was over China had successfully established full de facto control of the
Shoal.
Tribunal under UNCLOS. The Notification and Statement of Claim stated that the
Philippines was seeking a ruling that; (1) claims in the South China Sea must comply
with UNCLOS, which would invalidate China’s nine-dash line; (2) maritime features
occupied by China were classified as rocks, low- tide elevations, or submerged banks, but
not islands; and (3) the Philippines had the right to operate inside its Exclusive Economic
At the East Asia summit held in October 2013, US Secretary of State John Kerry
called on China to undertake serious negotiations on the South China Sea. In the same
month, China and Vietnam agreed to establish a working party to “jointly explore” the
Gulf of Tonkin. No progress was made towards agreeing a legally binding Code of
Conduct in the South China Sea during this period. Partly in response to its clash with
China in the Scarborough Shoal, the Philippines moved ahead with its claim under
UNCLOS.
In 2014 there was another major flare-up in tensions between China and Vietnam.
In May, China moved a deep-water drilling oil rig into what Vietnam considers its
territorial waters close to the Paracel Islands. The rig was accompanied by over 80
vessels, which clashed with Vietnamese vessels in the area. These events triggered large-
scale anti-Chinese riots in Vietnam in which at least 21 people died, most of them
Chinese. Many Chinese nationals fled the country. For a while the authorities seemed
willing to let them continue but after several days of Chinese nationals and property
coming under attack, they stepped in – not without difficulty – to bring them to an end.
Vietnam appealed to ASEAN to condemn China’s actions at its annual summit in mid-
May. ASEAN’s statement expressed concern and called for restraint by all parties, but
did not specifically mention China, leaving Vietnam disappointed with the outcome. The
statement also called for the long-discussed but oft-postponed code of conduct for
supportive of Vietnam.
While it was at loggerheads with Vietnam, China was also embroiled in another
argument with The Philippines in response to the conviction and imprisonment by the
Filipino authorities of nine Chinese civilians for poaching sea turtles in the reefs close to
its coastline. China protested and called for the men to be released.
In April 2015 satellite images revealed that China had begun building a large
airstrip on reclaimed land on Fiery Cross Reef in the Spratly Islands. China insisted that
the airstrip was for civilian purposes, but many were highly skeptical, with fears being
expressed that China might impose an ‘air defense zone’ over the area, as it did over the
East China Sea, where it has overlapping claims with Japan, in 2013.
In October 2015, the Arbitral Tribunal under UNCLOS ruled that it had
jurisdiction to consider the case filed by the Philippines against China in 2013. It also
ruled that the case was admissible. China condemned the decision, rejecting the
territorial disputes.
In the same month, the US sailed a destroyer within 12-nautical miles of new
artificial islands being built by China in the Spratlys, announcing that this was the first of
a series of actions intended to assert the right to free navigation in the region. China
warned the US that such a move would further increase tensions and retaliated by holding
agenda item during late-2015. November 2015 saw three important regional summits at
which the issue was raised: the Asia- Pacific Economic Cooperation (APEC) summit in
Manila, The Philippines; the ASEAN summit in Kuala Lumpur, Malaysia; and the East
Asia summit, also in Kuala Lumpur.
China sought to keep the issue of the South China Sea off the formal agenda of
the APEC summit. The issue did not appear in any of the official declarations arising
from the summit. However, US President Barack Obama and Japanese Premier Shinzo
Abe did make remarks about the importance of upholding international law and freedom
of navigation in the area in the course of bilateral meetings and to the world’s media.
Responding, Chinese vice foreign minister Liu Zhenmin said that China had
The Chinese government has the right and the ability to recover the islands and
reefs illegally occupied by neighboring countries [...] But we haven’t done this.
At the ASEAN summit, China did not seek to keep the issue off the agenda.
ASEAN member states and China agreed a range of steps on the South China Sea,
Immediately after the ASEAN summit came the East Asia Summit.30 Here again,
During 2016, the pattern of actions and counter-actions to assert claims has
continued. Several experts have called this the “new normal” in the South China Sea.
In January, China conducted two civilian flights to one of its artificial islands,
Fiery Cross Reef, landing them both on the new airstrip that it has built. A host of
countries, including the US and Vietnam, expressed concern at this move, arguing that it
increased the danger that the South China Sea was becoming ‘militarized’. Two more
Chinese-built airstrips are expected to become operational in the next few months.
Vietnamese airspace during the first seven days of 2016. Vietnam also announced that it
had begun submarine patrols in the South China Sea. China has said that it will deploy a
Defence Cooperation Agreement, signed last year, after its Supreme Court declared the
said agreement constitutional. The Philippines is also calling for joint patrols with the US
At the end of January, the US Navy sent a destroyer to within 12 miles of the
Paracel Islands to assert freedom of navigation. Within days it was being reported that
China had deployed missile batteries on Woody Island, one of the Paracel Islands. China
preferred to talk instead of “self-defense facilities”. It had also landed fighter jets there.
The US Administration accused China of breaking its promise not to militarize the South
China Sea. Sections of the Chinese media called on the Chinese military to fire shots at
and ram US warships that sailed too close to what it claimed was Chinese territory.
Cuarteron Reef and several other Chinese-controlled features in the Spratly Islands, with
a view to enhancing its surveillance capacities of surface and air traffic in the southern
China will be able to project “substantial offensive military power” from the artificial
islands it has been building in the Spratly Islands by the end of 2016.
In April, satellite images appeared to show that China had landed another two J-
11 fighter jets on Woody Island. It was also reported that China had agreed plans to
develop maritime nuclear platforms that could be used to provide power for the artificial
With a ruling from the Court of Arbitration on the Philippines’ case against China
expected in the near future, attention increasingly turned towards legal dimensions of the
In May it was also claimed that China is increasingly using irregular maritime
militias of fishermen and private boat owners based on Hainan Island, off mainland
China, to challenge US and other regional ships – this as a tactic that allows the Chinese
suggested that China had now also deployed reconnaissance drones on Woody Island.
Meanwhile, also in May, the US accused two Chinese fighter jets of unsafely
over the South China Sea by flying within 50 feet of it. This was the first such incident
since 2014. China claimed that the US spy plane had been over Chinese coastal waters
close to Hainan Island and a minister warned the US that China was willing to replay the
Korean or Vietnam Wars if provoked. Several days later, the US lifted its 50-year old
aircraft by Chinese jets – this time they came within 100 feet of it. At the same time,
In mid-June, the US Navy dispatched four electronic attack aircraft and about 120
military personnel to Clark Air Base on Luzon Island in the Philippines for training with
the Philippines Armed Forces and to support US and Philippines naval operations in the
The Arbitral Tribunal under UNCLOS indicated that it would be issuing its ruling
on the Philippines’ case against China on 12 July. In the week running up to the ruling,
the US conducted naval patrols close to the Spratly Islands involving destroyers and an
aircraft carrier. Meanwhile, China held military drills around the Paracel Islands. China
pledged that it would not take a “single step back” in the South China Sea. The new
Philippines president, Rodrigo Duterte, proposed dialogue with China following the
court’s decision.
The US reiterated its position that China should accept the ruling.59 US officials
also confirmed publicly for the first time that China had deployed anti-ship cruise
missiles in the area. China’s foreign minister, Wang Yi, had a phone conversation with
International law is often cited in connection with claims in the South China Sea.
The main legal issues being sovereignty, who can do what in different maritime zones,
claims to an extended continental shelf and the role of the UN Continental Shelf
Commission; and dispute resolution procedures including arbitral tribunals, and the
Sovereignty, the indicator which tells to which country islands belong to, is very
important in this dispute because islands, as well as mainland coasts generate sovereignty
over the surrounding sea, with fishing and seabed rights in the territorial sea, as well as
China’s claim to sovereignty over the islands in the South China Sea and the area
claims, but with little evidence of exactly what those claims cover, or of effective
rights arise for coastal states and foreign vessels respectively. Fishing and seabed oil and
gas rights are amongst the most important of these rights in the South China Sea.
The international law of the sea is now largely embodied in the 1982 UN
Convention on the Law of the Sea (UNCLOS). UNCLOS covers a wide range of issues
relating to the world’s oceans, including the rights over the seabed as well as fishing,
navigation and shipping. It brought together traditional rules for the uses of the oceans
and new legal concepts and regimes, as well as providing the framework for further
development of specific areas of the law of the sea. It entered into force in 1994, and now
has 167 State Parties, including China, Malaysia, the Philippines, Vietnam and Brunei.
A major dispute in the South China Sea is over whether each feature counts as an
island or a rock. Only naturally-formed islands that are above sea level at high tide can
generate a territorial sea, EEZ or continental shelf. If they cannot sustain human
habitation or an economic life of their own, they are considered merely ‘rocks’, which
which is above sea level at low tide but submerged at high tide. This can extend the
territorial sea of the mainland or an island, but cannot generate a territorial sea of its own.
general rules in UNCLOS – notably some of the rules on bays and the rules on
There is also some recognition of historical usage in relation to fishing. The law
requires a State to consider ‘the need to minimize economic dislocation in States whose
nationals have habitually fished in the zone’ when allowing other States to access its
EEZ. Under another law, an archipelagic State ‘shall recognize traditional fishing rights
and other legitimate activities of the immediately adjacent neighboring States in certain
areas falling within archipelagic waters’. But otherwise UNCLOS appears intended to
Under UNCLOS, states can claim an extended continental shelf beyond 200
nautical miles from its baselines too. The UN Commission on the Limits of the
Continental Shelf (CLCS) verifies the outer limits of these claims on the basis of the
formula contained in UNCLOS, and provides appropriate scientific and technical advice
to states if requested. The CLCS does not resolve territorial disputes between states. If a
dispute exists, it will not consider a submission unless prior consent is given by all states
concerned. Disputes over extent between opposite or adjacent states may instead be
resolved through two alternative procedures: the principle of equidistance from the
nearest points of the respective baselines or ‘by agreement in accordance with equitable
Tribunal for the Law of the Sea (ITLOS) established under UNCLOS, to the International
Article 4, a coastal state must submit its proposal for establishment of its continental shelf
beyond 200 nautical miles to the CLCS within 10 years of UNCLOS entering into force
for that state. Once the coastal state has established the limit of its continental shelf in
accordance with the recommendations of the CLCS, that limit is final and binding.
In 2009 Malaysia, the Philippines and Vietnam each filed submissions with the
CLCS for areas of extended continental shelf beyond 200 nautical miles in the South
China Sea. Where these submissions included areas surrounding features claimed by
other States, the States affected – including China – submitted Notes Verbale to the UN
The submissions and protests helped to clarify the claims of several of the States claiming
sovereignty over features in the South China Sea.70 However, as noted above, the CLCS
The International Court of Justice (ICJ) can hear contentious cases between states
– for instance in a sovereignty dispute – but only if they both agree to it.
Under UNCLOS, if the parties to a dispute fail to reach a settlement by peaceful
means of their own choice, they are obliged to resort to one of the four compulsory
dispute settlement procedures set out in UNCLOS; (1) the International Tribunal for the
Law of the Sea (ITLOS), a specialized tribunal adjudicating disputes over the
interpretation and application of UNCLOS; (2) the International Court of Justice; (3) an
arbitral tribunal constituted in accordance with Annex VII to the Convention; or (4) a
special arbitral tribunal constituted in accordance with Annex VIII to the Convention.
Both parties must agree to the same forum for it to have jurisdiction. If the parties
to a dispute have not accepted the same settlement procedure, the dispute may only go to
arbitration in accordance with Annex VII of UNCLOS (unless the parties agree
where disputes involve existing maritime boundaries, historic bays and titles, military
On 12 July, the Arbitral Tribunal published its ruling, finding in favour of the
Philippines. Below is a summary of the ruling, taken from the press release it issued on
that day.
[...] the Tribunal concluded that, to the extent China had historic rights to
resources in the waters of the South China Sea, such rights were
that China had historically exercised exclusive control over the waters or
their resources. The Tribunal concluded that there was no legal basis for
China to claim historic rights to resources within the sea areas falling
Status of Features:
[...] the Tribunal concluded that none of the Spratly Islands is capable of
generating extended maritime zones. The Tribunal also held that the
Having found that none of the features claimed by China was capable of
the exclusive economic zone of the Philippines, because those areas are
Having found that certain areas are within the exclusive economic zone of
the Philippines, the Tribunal found that China had violated the Philippines’
islands and (c) failing to prevent Chinese fishermen from fishing in the
zone.
reef environment and violated its obligation to preserve and protect fragile
Aggravation of Dispute:
The Tribunal found [...] that China’s recent large-scale land reclamation
evidence of the natural condition of features in the South China Sea that
There is no shortage of voices calling for all parties to the South China Sea to
show restraint and work towards de-escalation of the dispute, with some urging them to
focus instead on building trust and confidence through joint development projects. The
countries directly involved –China included – have all at points expressed willingness to
Unless the parties to the dispute are willing to show greater flexibility, the most
likely outlook is for continued tension. Under this scenario, the rival claimants will
resolution to the dispute. A legally binding Code of Conduct in the South China Sea
predominantly in favor of the Philippines, are difficult to predict, but they are as likely to
tensions between his country and China but to date the latter has not responded to his
olive branch.
There are concerns that China’s immediate response might be to declare an Air
Defense Identification Zone (ADIZ) in the South China Sea, as it did in the East China
Sea in 2013, under which ‘foreign aircraft’ officially would be required to seek Chinese
permission to fly over the area. If this does happen, the US and other countries can be
expected – as they have done in the East China Sea – reject the legality of the ADIZ and
As always, the fear is that an event of some kind will inadvertently trigger a larger
armed confrontation whose consequences proves difficult to control. Some analysts view
this as a major risk, while others are more sanguine. Either way, if this is the “new
normal” in the South China Sea, it is a highly dysfunctional and undesirable one.