Will the Philippines File a Second South China Sea Arbitration Case? – The Diplomat

In a press interview, Menardo Guevarra, the incumbent solicitor common of the Philippines, said that Manila is conducting research to evaluate the extent of environmental harm at Iroquois Reef within the South China Sea attributable to Chinese language vessels. He added that the Philippines is contemplating searching for authorized motion in opposition to China at a world courtroom or arbitral tribunal. Iroquois Reef is a completely submerged reef formation that’s situated on the southern finish of Reed Financial institution and northeast of the Spratly Islands, an space that’s regarded as wealthy in oil and gasoline.

This assertion was made after a sequence of provocative actions by China within the South China Sea, the place Beijing’s expansive claims overlap with the Philippines’ unique financial zone (EEZ). If the Marcos administration follows via with the case, will probably be the second time the Philippines has introduced China earlier than a world courtroom in issues referring to the South China Sea, the place disputed maritime claims have turned the area right into a flashpoint of worldwide concern. 

What Occurred within the First South China Sea Arbitration Case?

The 2016 South China Sea arbitration between China and the Philippines was a landmark case dominated by the Annex VII arbitral tribunal constituted underneath the 1982 United Nations Conference on the Legislation of the Sea (UNCLOS). The 479-page ruling of the Award was overwhelmingly favorable to the Philippines – the claimant on this case – and disregarded all arguments made by China, which selected to not take part within the continuing. The findings of the Award make clear a number of controversial points within the South China Sea.

At the beginning, the Tribunal discovered that China’s declare to historic rights and assets inside the nine-dashed line, encompassing 90 p.c of the South China Sea, has no authorized foundation underneath worldwide regulation.

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Second, the Tribunal dominated that not one of the options within the Spratly Islands glad the factors for being categorized as an island underneath UNCLOS and, as such, should not entitled to a 200 nautical mile EEZ and a continental shelf. This discovering drastically limits the potential overlapping areas of dispute among the many claimants within the South China Sea.

Third, the Tribunal discovered that China has violated its obligations underneath UNCLOS by interfering with the Philippines’ train of its sovereign rights over the residing and non-living assets in its EEZ and continental shelf. One particular violation included the harassment of the Philippines’ survey ship by a Chinese language patrol boat on the Reed Financial institution in 2011. Furthermore, the Award said that China violated its marine environmental safety obligations by inflicting extreme hurt to the coral reef surroundings with its land reclamation actions and harvesting of endangered species in sure elements of the South China Sea.

The Award is last, and the Philippines and China are legally sure by the ruling as events to the dispute and signatories to UNCLOS. Nonetheless, whereas the Philippines and plenty of different nations welcomed the Award, China dismissed it as a “piece of waste paper” and elevated provocative actions within the disputed space of the South China Sea after the ruling.

What Ought to the Philippines Think about for a Second Case?

Initiating a world continuing in opposition to one other state isn’t a small feat, particularly in opposition to a rustic economically and militarily superior to your personal. Apart from the required political will, the Philippines ought to think about the place they’d file such a case, what points to litigate, and when to begin the continuing.

The place?

In relation to selecting a courtroom for the Philippines to file its second case, the choices are quite restricted. Article 287 of UNCLOS supplies 4 venues for a state celebration to settle disputes, particularly the Worldwide Tribunal for the Legislation of the Sea (ITLOS), the Worldwide Courtroom of Justice (ICJ), and arbitral tribunals underneath Annex VII and Annex VIII. Nonetheless, the arbitral tribunal constituted underneath Annex VII is the default alternative of states searching for the so-called “obligatory procedures entailing binding selections” established underneath the Conference. If neither the Philippines nor China chosen some other courtroom as their most popular alternative, Manila would don’t have any alternative however to file its case on the Annex VII arbitral tribunal.

That is certainly not a foul alternative. The Annex VII arbitral tribunal was additionally the venue that gave the ruling within the Philippines’ first case in 2016. As such, there can be a excessive likelihood that the tribunal would undertake the identical method and uphold the rulings within the first case, which have been favorable to the Philippines’ place. 

What?

Guevarra knowledgeable the press that the research underway which may result in Manila submitting the second case isn’t restricted to the extent of environmental harm in Iroquois Reef within the Spratly Islands but additionally consists of “different incidents and the general state of affairs within the West Philippine Sea.” The “different incidents” referred to right here might embrace current aggressive actions carried out by China within the South China Sea, together with the introduction of a brand new ten-dashed line map, the militarization of Chinese language-occupied options, laser taking pictures, water cannon blasting, and harmful vessel maneuvering within the disputed space of the South China Sea.

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The jurisdiction of the arbitral tribunal, nevertheless, has sure caveats. Article 297 of UNCLOS excludes circumstances regarding requests to conduct marine scientific analysis within the EEZ and people regarding the train of coastal states’ sovereign rights to take advantage of the residing assets of their EEZ. Beneath Article 298, China has opted out of disputes regarding sea boundary delimitation and army actions or concerning the train of sovereign rights or jurisdiction of the coastal state over residing assets in its EEZ. Consequently, these points couldn’t be litigated in opposition to China. 

Furthermore, underneath the doctrine of res judicata, states might not re-litigate points which have already been determined in a judgment or award by a courtroom of regulation.   

As such, the Marcos administration ought to fastidiously think about which subject to litigate in its second case. Ideally, they need to keep away from points that fall outdoors the scope of UNCLOS and the Tribunal’s jurisdiction, similar to sovereignty over the options within the South China Sea or people who have already been settled in its first South China Sea case, together with the unlawful 9 (now ten)-dashed line or China’s violation of marine surroundings safety obligations underneath the Conference with its land reclamation actions. 

As a substitute, the Philippines might formulate its claims to problem current aggravated actions by China, together with its mobilization of a whole bunch of maritime militia vessels and harassment of different international vessels within the South China Sea. The choice of the arbitral tribunal on this subject would make clear the right way to view China’s so-called grey zone techniques within the South China Sea underneath worldwide regulation.

When?

Any dispute involving the South China Sea is each legally and politically tough. Furthermore, worldwide disputes take a very long time to resolve, as evidenced within the first case, which took the arbitral tribunal greater than three years to render its judgment. It will be within the curiosity of the Philippines to have the continuing fall solely inside President Ferdinand Marcos Jr.’s time period of workplace, which is ready to run out on June 30, 2028. On this method, Manila can observe via with the litigation course of and keep away from a possible change of stance within the subsequent administration. With the earlier award, a change in authorities noticed the incoming Duterte administration largely ignore the case, which had been filed by its predecessor.

At this stage, it’s nonetheless unsure whether or not Manila will as soon as once more carry China earlier than a world courtroom or arbitral tribunal and what points will kind its core claims.

What is sort of sure is that much like the primary South China Sea arbitration case, China will probably refuse to take part within the proceedings and can boycott the award whether it is unfavorable to them.

Even nonetheless, UNCLOS, because the Structure of the Ocean, stays a related authorized instrument that gives venues for “obligatory procedures entailing binding selections” to peacefully settle worldwide disputes. A second resolution by a world courtroom or arbitral tribunal might make clear necessary problems with the Conference and direct the claimants to carry their conduct into conformity with the worldwide regulation of the ocean.

Within the meantime, the worldwide group awaits the choice of the Marcos administration.