Case of the Day: Philippines v. China

Hugo Grotius John Selden

An arbitral tribunal constituted under Annex VII to the UN Convention on the Law of the Sea issued its long-awaited Award in the case the Philippines brought against China arising out of China’s claims in the South China Sea. I’m not a specialist in this area and so I’m not going to offer any detailed comment—you probably want to look to Julian Ku or others for that. Most experts predicted this was an easy win for the Philippines, and that’s how it turned out. The key point, it seems to me, was the tribunal’s decision that China’s maritime entitlements are defined by the Convention, and that even if China had some kind of “historic rights” (the nature and justification of which have never been made clear), they were extinguished when China acceded to the Convention. You can’t own the sea. There was more. Because some features claimed by China did not create exclusive economic zones, areas of the sea around those features were, according to the tribunal, within the Philippines’ exclusive economic zone, and China had wrongfully interfered with the Philippines’ activity within its EEZ. Some features claimed by China were low-tide elevations that did not even give rise to a twelve-mile territorial sea.

The almost universal view of experts was that the Philippines would win, although I sense some surprise that its victory was so thorough. The decision is certainly in the US national interest, both from a defense point of view and an economic point of view. I am guessing the United States will continue its freedom of navigation operations in the South China Sea, though perhaps the US will continue to forebear from doing everything the law of the sea permits, depending on whether China reacts constructively to the award. The early signs are not so promising. Here is the statement from the Ministry of Foreign Affairs:

With regard to the award rendered on 12 July 2016 by the Arbitral Tribunal in the South China Sea arbitration established at the unilateral request of the Republic of the Philippines (hereinafter referred to as the “Arbitral Tribunal”), the Ministry of Foreign Affairs of the People’s Republic of China solemnly declares that the award is null and void and has no binding force. China neither accepts nor recognizes it.

Perhaps the award will increase the prospects for the United States’s long-overdue ratification of the Convention:

“We are limited in our ability to strengthen international law … if we cannot lead by example,” said Sen. Jack Reed, top Democrat on the Senate Armed Services Committee, in a rare public divergence from SASC chairman John McCain. ”The United States has not yet ratified UNCLOS, despite calls from our top military leaders who agree it will strengthen our national security. The treaty is the foundation for today’s ruling, and U.S. support for UNCLOS will be critical if we are to be successful in advocating for the rule of law throughout the region.”

Agreed Rep. Adam Smith, ranking Democrat on the House Armed Services Committee: “the United States Senate should take steps to do what the past three presidents, the U.S. Navy, and the U.S. Coast Guard have long requested: to ratify UNCLOS and to protect U.S. interests by ensuring that the United States is a full and participating party to this important international agreement.”

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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