Course Notes – IL: Philippines v. China and the Law of the Sea

China has a long history of disputes with other nations regarding their sovereignty over islands. Japan and China are currently at odds over some islands in the East China Sea (owned by a private Japanese individual). Vietnam recently sent six Buddhist monks to lay claim to the Spratly Islands in the South China Sea. And this, coupled with the even more serious contestation between China and the Philippines, amounts to what some (including Walter Russell Mead) are calling “the Great Game”.

Map of the Spratly Islands:
wpid-China-claims-Paracel-Spratly-Islands-11-2012-04-18-13-33.jpg

The biggest contest in recent days seems to be between China and the Philippines, again near the Spratly Islands which are also desired by Vietnam (Business Insider). Philippine warships reportedly threatened Chinese fishing vessels, raided ships, and faced-off with Chinese surveillance vessels. China has deployed ships and aircraft to the region. Of course, the Philippines is a strategic ally for the United States, so it may come as no surprise that all of this is happening just as their annual joint American-Filipino military exercises began in the South China Sea (Washington Post). However, as Julian Ku notes over at Opinio Juris, it is unlikely that the Philippines will win this dispute with military force.

Could this be resolved using international law? The Philippine government seems to hope so. They have brought the case to the International Tribunal for the Law of the Sea (ITLOS). Their Department of Foreign Affairs Secretary, Albert del Rosario:

At day’s end, however, we hope to demonstrate that international law would be the great equalizer…The purpose of the exercise will be to ascertain which of us has sovereign rights over the waters surrounding Scarborough Shoal. (ABS-CBN News).

However, China may have its own sovereignty claim which, Ku notes, may make it difficult for ITLOS to have jurisdiction without China’s (unlikely) consent. And apparently China is not too keen on using ITLOS as a forum. Chinese embassy spokesperson Zhang Hua, in response to these developments, reportedly wrote:

We urge the Philippine side to fully respect China’s sovereignty, and commit to the consensus we reached on settling the incident through friendly consultation and not to complicate or aggravate this incident, so that peace and stability in that area can be restored.(Zambo Times)

So, using ITLOS is an aggravation?

Even if they cannot get ITLOS to settle the matter, they might be able to get an advisory opinion (along with Vietnam) from ITLOS on China’s claims, which could lend support for their cause, argues Ian Storey (Thanh Nien News). A case study at American University does a nice job of briefly and neatly summarizing what I believe are the key legal claims here:

The Law of the Sea Convention — an international law/standard agreed to by the countries of the world — is involved in the claims of Malaysia, Brunei, and the Philippines. These three countries claim that all or part of the islands are a part of their continental shelf. According to the Law of the Sea, the countries have legal right over the area of their continental shelf.
In 1987 China claimed that the Hainan Island–the closest recognized Chinese territory to the islands–was a separate province that would be developed as a special economic zone and declared a new law on its territorial waters in 1992. These laws gave China a greater basis for claiming control over the Spratlys as a “contiguous zones” for territory.

What is at stake here?

The islands are significant for their geographic location (shipping and military interests), fishing rights, guano, and possibly oil, natural gas and mineral resources.