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Lecture 23

POL340Y1 Lecture 23: POL340-Lecture-23-SCS-Case

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Political Science
Gerard J Kennedy

The South China Sea Arbitration (Philippines v. China), Permanent Court of Arbitration, PCA [2013] CASE What happened? • China and Philippines have competing claims to regions of the South China Sea • China: o Has a massive claim on the sea, including all of Taiwan o Asserts a historic claim of a “nine-dash line”: arises from a series of map drawn by Chinese officials post-WWII ▪ Some islands contained within the NDL have been inhabited by Chinese nationals or ethnic Chinese at various times - China’s claims imply that the territory of their waters allows them to extract resources in their waters (e.g. oil and gas deposits) • Philippines: o 1) nah it’s invalid; o 2) also per UNCLOS (United Nations Convention on the Law of the Sea) ▪ Some rocks may be islands and vice versa; and o 3) if rocks are islands, then we should exercise right to economic activities based on new distance’ - The United States asserts that the majority of China’s claim are high seas: not special economic zones, no country should not have a claim • (2013) Philippines initiated arbitration proceedings against China o (pursuant to Art 286 and 287 of UNCLOS, in accordance with Art 1 of Annex VII of UNCLOS) • China presented a ‘Note Verbale’ (letter of protest) o Rejecting arbitration and returning the notification about the claim. o China says the two states have entered into a bilateral agreement to settle their disputes through negotiations (and not through the PCA). o By initiating proceedings, Philippines has breached its obligations. • (2006) China made a declaration that arbitration in cases of maritime delimitation would not be binding. Issue • Issue 1: o Nine-dash line–is it compatible with UNCLOS; is the claim limited to the Philippines? • Issue 2: o Islands and rocks–are some of the islands in the dispute area (Spratly and Paracel Islands) part of the EEZ of China • Issue 3: o China’s interference of Philippine sovereignty rights Rule • China doesn’t want to participate; o PCA says Article 9 of UNCLOS allows them to continue the case • China: o Philippine dispute is about the application and execution of “territorial sovereignty” ▪ rather than a dispute about the applicability and execution of the Convention o China says that they have sovereignty over the dispute of the islands • Court: o Rejects the claim that the claim is in regards to sovereignty over land o Not maritime law as China states • The Philippines did not request the Tribunal to delimit (determine the limits or boundaries of) any overlapping boundaries o So it’s not a problem against the 2006 declaration. • China has never clarified its historic claim to the South China Sea per the “nine-dash line” – o And it was not mentioned in the past ‘Note Verbale’ Conclusion • Effectively, China claimed that their citizens have used the water for a sufficient amount of time such that the Convention doesn’t change that–maintain their right • Judgement outlined numerous colourful maps of historic claims • Chinese nationals did use that area of water, the PCA conceded • Does this claim fall in the category of “historic bays or titles”, per Article 298(1)(a)(i) • Court says it doesn’t apply to China because they didn’t claim it was a historic bay for all purposes; China only claims that area as a historic economic area • Convention supersedes prior claims (absent agreement) to living and non-living resources • Court’s analysis didn’t need to go deeper than that. Chinese claims were NOT historic, they were economic. There are no such thing as historic economic rights under UNCLOS • The Court decided that islands at issue are not islands at all, if they are islands you can draw baselines. Rocks are not islands. China is an archipelagic state so it can’t do what the Philippines does with straight baselines. • Neither states could use archipelagic baselines (Article 47) regarding the Spratly Islands • High tide features of Spratly Islands are not capable of sustaining human habitation or an economic life of their own (Article 121(3)) • Mischief Reef Claims (example) • Court concludes that this is within the Philippine EEZ, they have jurisdiction over these Chinese- built artificial islands; the Chinese are prohibited of building that • China breached Articles 60 and 80 • Mischief Reef not capable of appropriation (not land) • Any arguments on this basis are not founded since the islands are not land • PRC basically loses every aspect of this case • Result of 600-paged result? History of International Law of the Sea • States are made up of land, as we have discussed previously; o The Montevideo Convention doesn’t mention ocean or sea as being part of a state • Different states at different times have claimed sovereignty over water Sovereignty over the high seas? E.g. Papal bull – Aeterni regis – 1481 REFERENCE • Pope declared the Kings of Portugal and Castile had sovereignty over the islands off the coast of Africa; was not enforced • Columbus sails to the New World shortly after: dispute arises as such Treaties of Tordesillas (1494) / Zaragoza (1529) • Divides world between Portugal and Spain; the Meridian line • They settled the dispute bilaterally and some states respected that agreement • “Freedom of the seas” / mare liberum • Recall: o France and Turkey case = The vessel while in high sea is free from sovereignty with the exception of piracy Question: Does this concept impede on a state’s ability to practice self-defence • Subject to the law of high seas o YES! What are the high seas though? • 3-mile “cannon shot” rule
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