China v Philippines (2016): A Case Study

China v Philippines (2016): A Case Study

By: Aurélie Lévesque

I. Introduction

The South China Sea (SCS) is seen as one of the world’s most important maritime regions in terms of location, transportation, and resources. Over one-third of global shipping passes through the SCS,[1] amounting to an estimated value of $3 trillion, and 12% of global fish catch originates from it.[2] The SCS is also estimated to store 11 billion barrels of oil, and 190 trillion cubic feet of natural gas resources stored under the seabed.[3] Hence, the SCS plays a major role in the global economy and has a vital political, economic, and environmental standing.[4] Historically, the territorial ownership of the SCS has been heavily disputed by bordering countries, including China, Brunei, Indonesia, Malaysia, the Philippines, Taiwan, and Vietnam.[5] Since 1982, however, the United Nations Convention on the Law of the Sea (UNCLOS) has established clear measures for distinguishing between territorial waters, exclusive economic zones (EEZs), and international waters.[6] Article 3 of the UNCLOS stipulates that states have a right to territorial waters not exceeding 12 nautical miles (N.M.) from their coastline, where foreign ships enjoy the right of innocent passage.[7] According to Article 57 UNCLOS, states are also entitled to a full 200 N.M. EEZ, including territorial 12 N.M.[8] In these EEZs, states can explore and exploit all natural resources, including those below the seabed.[9] Foreign ships may enter EEZ waters freely but cannot exploit resources.[10] Despite the international recognition of the Convention and China’s ratification, China has set its own rules over the SCS. Derived from 15th-century naval expeditions, China’s nine-dash line claims over 90% of the SCS, interfering with several countries’ EEZs and territorial waters, including the Philippines, Vietnam, and Malaysia’s.[11] This has caused a conflict in the SCS, specifically over the currently contested islands, such as the Spratly Islands.[12] As a result, the Philippines brought a case against China before the Permanent Court of Arbitration (PCA).[13]

II. China v. Philippines Case

A. Facts of the case

China’s nine-dash line claims control and sovereignty over the most part of the SCS.[14] This includes islands in other countries’ EEZs, such as the Spratly Islands.[15] Fiery Cross Reef, located within the Philippines’ EEZ in the Spratly Islands, was one of the triggers to the China v. Philippines case that was brought to the Hague Tribunal.[16] Fiery Cross Reef comprises of a coral reef located in the Philippines’ EEZ but is claimed by China, as it falls within the 9-dash line.[17] Despite previously being a submerged reef, China has piled sand onto Fiery Cross Island to create artificial land hosting the military base.[18] Fiery Cross Island includes a 10,000ft airstrip, air identification systems, and 200 troops to create a military presence in the area.[19] The creation of an artificial island allowed China to claim territorial and EEZ waters, expanding the areas in which they can use resources and control sea passage.[20] Hence, China’s militarization of reefs in the SCS enables the expansion of its Exclusive Economic Zone and further sovereignty over the SCS.[21] However, as Fiery Cross Reef is part of the Philippines’ EEZ, this has created a geo-political conflict between the two states, which forced the Philippines to bring a case before the Hague Tribunal.[22]

B. The Court’s Reasoning

The three most important questions brought before the Court were whether the Spratly Islands generated territorial and EEZ waters, whether the Philippines’ sovereign rights were violated by China’s activity in the Philippines’ EEZ, and the legality of the nine-dash line that China had established despite the ratification and enforcement of the UNCLOS.[23]

Firstly, the UNCLOS states that, for the purposes of delimitation of a state’s territorial waters, permanent harbour works may form part of the coast, except for artificial islands.[24]Article 60 indicates that States may only build and have full jurisdiction of artificial islands in their own EEZ.[25]Lastly, the UNCLOS also states in Article 13(2), ‘Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own’.[26] From these rules, the military installations built by China do not legally generate territorial waters, as the Court has regarded the Spratly Islands, including Fiery Cross Island, legally as ‘rocks’ that ‘do not generate an EEZ or continental shelf’.[27] Thus, despite the construction of military infrastructure, no EEZ is generated for China from any artificial island.[28] These islands were not only ruled to be illegally constructed without the Philippines’s consent, but the Tribunal also ruled that China had failed to protect natural fragile and endangered marine environment by permanently altering it.[29]

Next, the ‘lawfulness’ of Chinese activity within the SCS, specifically within the Philippines’ EEZ, was assessed by the Tribunal.[30] The Tribunal found that whilst some of China’s naval activities were based in international waters, giving China full right to exploit these areas, such activities were also conducted in the Philippines’ EEZ.[31] Thus, the Tribunal found a violation of the Philippines’ sovereignty in three ways; interference with the Philippines’ fishing and petroleum industries and activities, construction of artificial islands, and failure to prevent Chinese fishing boats from entering Philippines’ fishing and economic zones.[32]

Lastly, China’s nine-dash line was declared invalid by the Tribunal.[33] China’s ‘historic’ rights, outlined as historical use of islands by Chinese fishermen, were deemed not compatible with the Convention’s outline of EEZ and continental shelf rights.[34] Additionally, the Tribunal did not find evidence of China’s historic ‘exclusive control over the water or [the] resources’ of the SCS.[35] Prior to the adoption of the UNCLOS, the SCS waters were legally regarded as the high seas, allowing any State to freely use the resources.[36] China’s historical claims were, therefore, based on their exercise of the high sea freedoms in the past.[37] Hence, the Tribunal concluded that China had no legal basis for “claim[ing] historic rights to resources […] within the sea areas falling within the ‘nine-dash line’”.[38]

C. The Court’s Judgment

The Tribunal ruled that China had no real legal basis for its claim to the resources in the SCS based on its nine-dash line.[39] It concluded that the Spratly Islands do not generate a continental shelf, an EEZ or territorial waters in accordance with the Convention.[40] Regarding China’s activity in the SCS, the Tribunal held that China had violated the Philippines’ sovereign rights and that parties were to comply with the Tribunal’s decision.[41]

III. Conclusion: 7 Years On

China boycotted the proceedings and refused to accept the Court’s judgment in 2016.[42] Since then, reports show that China did not cease its activities in the Philippines’ EEZ.[43] Fishermen working in the area have reported several incidents with Chinese coast guard ships, including one incident in March 2021, when 200 Chinese militia vessels[44] rammed or blasted them with water cannons while they were fishing in the Philippines’ EEZ.[45]

To conclude, China has yet to consider the Court’s judgment and leave the Philippines’ EEZ.[46] Despite its ratification of the UNCLOS, it has yet to implement the territorial and EEZ waters clauses instead of its own nine-dash line, as Chinese ships are still present in Philippine EEZ.[47] Additionally, tensions still run high even seven years after the resolution of the conflict, creating strained political and economic relations for countries bordering the South China Sea.[48]

[1] ‘How Much Trade Transits the South China Sea?’ (Center for Strategic & International Studies, 25 January 2021) <https://chinapower.csis.org/much-trade-transits-south-china-sea/> accessed 9 January 2023. [2] Kevin Varley et al, ‘Fight Over Fish Fans a New Stage of Conflict in South China Sea’ (Bloomberg, 1 September 2020) <www.bloomberg.com/graphics/2020-dangerous-conditions-in-depleted-south-china-sea/?leadSource=uverify%20wall> accessed 9 January 2023. [3] ‘Contested Areas of South China Sea likely have a few conventional oil and gas resources’ (US Energy Information Administration, 3 April 2013) <www.eia.gov/todayinenergy/detail.php?id=10651> accessed 9 January 2023. [4] ‘The Strategic Importance of the South China Sea’ (Geollect, 10 March 2022) <www.geollect.com/news/the-strategic-importance-of-the-south-china-sea/> accessed 28 January 2023. [5] Center for Preventative Action, ‘Territorial Disputes in the South China Sea’ (Council on Foreign Relations, 4 May 2022) <www.cfr.org/global-conflict-tracker/conflict/territorial-disputes-south-china-sea> accessed 28 January 2023. [6] United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS) arts 3, 48, 89. [7] ibid, art 17. [8] ibid, art 57. [9] ibid, art 56. [10] ibid, art 17. [11] David Lague, ‘Analysis: China’s nine-dashed line in South China Sea’ (Reuters, 25 May 2012). <www.reuters.com/article/us-china-sea-boundary-idUSBRE84O07520120525> accessed 11 January 2023; Center for Preventative Action (n 5). [12] Center for Preventative Action (n 5). [13] ‘The Republic of Philippines v The People’s Republic of China (The South China Sea Arbitration)’ (Permanent Court of Arbitration) <https://pca-cpa.org/en/cases/7/> accessed 28 January 2023. [14] Humeyra Pamuk et al, ‘US rejects China’s claims in the South China Sea, adding to tensions’ (Reuters, 13 July 2020) <https://www.reuters.com/article/us-usa-china-southchinasea-idUSKCN24E2OU> accessed 28 January 2023. [15] Jeffrey Bader, ‘The US and China’s Nine-Dash Line: Ending the Ambiguity’ (Brookings, 6 February 2014) <https://www.brookings.edu/opinions/the-u-s-and-chinas-nine-dash-line-ending-the-ambiguity/> accessed 20 February 2023. [16] Permanent Court of Arbitration (n 13). [17] Bader (n 15). [18] Derek Watkins, ‘What China has been building in the South China Sea’ (New York Times, 27 October 2015) <www.nytimes.com/interactive/2015/07/30/world/asia/what-china-has-been-building-in-the-south-china-sea.html> accessed 13 January 2023. [19] ibid. [20] Sourabh Gupta et al, ‘China’s Claims in the South China Sea’ (Institute for China-America Studies, 2020) <https://storymaps.arcgis.com/stories/f41484de9d4144c59b22540cb94b150a> accessed 28 January 2023. [21] ibid. [22] Permanent Court of Arbitration (n 13). [23] The Republic of Philippines v The People’s Republic of China (The South China Sea Arbitration) (Press Release) (Permanent Court of Arbitration), section 1. [24] UNCLOS art 11. [25] ibid, art 60. [26] ibid, art 13(2). [27] Christine Pichel Medina, ‘Legal victory for the Philippines against China: A Case Study’ (2017) Geneva Graduate Institute: Global Challenges <https://globalchallenges.ch/issue/1/legal-victory-for-the-philippines-against-china-a-case-study/> accessed 16 January 2023. [28] China v Philippines (n 23), section 4(b). [29] ibid. [30] ibid. [31] ibid. [32] ibid. [33] ibid, section 4(a). [34] ibid. [35] ibid. [36] ibid. [37] ibid. [38] ibid. [39] ibid. [40] UNCLOS art 13(2). [41] China v Philippines (n 23), section 4(e). [42] Tom Phillips et al, ‘Beijing rejects tribunal’s ruling in South China Sea case’ (The Guardian, 12 July 2016) <www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china> accessed 28 January 2023. [43] Karen Lema, ‘Five years after South China Sea Ruling, China’s presence around Philippines only growing’ (Reuters, 9 July 2021) <www.reuters.com/world/asia-pacific/five-years-after-south-china-sea-ruling-chinas-presence-around-philippines-only-2021-07-09/> accessed 16 January 2023. [44] ibid. [45] ibid. [46] ibid. [47] ibid. [48] ibid.