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China: Arbitration in South China Sea Dispute

(Feb. 1, 2013) On January 22, 2013, the Philippines informed China that it wants to go to an international arbitration process over China’s claims to a part of the South China Sea; this portion is considered by the Philippines to be the West Philippine Sea (WPS). According to the Foreign Secretary of the Philippines, Albert del Rosario, his government will bring the issue to arbitration, as specified in the U.N. Convention on the Law of the Sea. (Press Release, Republic of the Philippines Department of Foreign Affairs, 23/01/2013: Statement by Secretary of Foreign Affairs Albert del Rosario on the UNCLOS Arbitral Proceedings Against China to Achieve a Peaceful and Durable Solution to the Dispute in the WPS (Jan. 22, 2013); Peter Snyder, Philippines Takes South China Sea Dispute to UN Tribunal, PAPER CHASE NEWSBURST (Jan. 22, 2013); United Nations Convention on the Law of the Sea of 10 December 1982, art. 287 [on choice of procedure] & Annex VII [Arbitration], U.N. website.)

The communication with China was done via a Note Verbal, handed directly to China’s ambassador to the Philippines. (Press Release, supra.) The Note included a Notification and Statement of Claim. (Republic of the Philippines Department of Foreign Affairs, Notification and Statement of Claim (Jan. 22, 2013) [scroll down to find the document], Embassy of the Philippines, Washington D.C. website.) The document refers to what the Philippines considers to be China’s escalation of interference with the Philippines’ maritime rights, including the move last July to place the entire South China Sea area under the jurisdiction of China’s Hainan Province and to require ships from other countries to request permission before entering the region. (Id.; Snyder, supra.)

Del Rosario explained the move to arbitration, stating:

The Philippines has exhausted almost all political and diplomatic avenues for a peaceful negotiated settlement of its maritime dispute with China. On numerous occasions, dating back to 1995, the Philippines has been exchanging views with China to peacefully settle these disputes. To this day, a solution is still elusive. We hope that the Arbitral Proceedings shall bring this dispute to a durable solution. (Press Release, supra.)

A news commentary points out that the issue was not taken to the International Court of Justice or to the International Tribunal on the Law of the Sea (ITLOS); instead, an ad hoc arbitration will take place under the provisions of the Convention. It will be handled by a five-member arbitration panel. The Philippines has already chosen one panel member; China will be able to name a second, and the remaining three members should be jointly selected from a U.N. list of arbitrators. Should the two parties not be able to agree on these final three panel members, the President of ITLOS will appoint them. (H. Harry L. Roque, Understanding Our Unclos [sic] Arbitral Submission, INQUIRER OPINION (Jan. 24, 2013).) If successful, the arbitration will resolve only issues related to ocean territory; disputes over the islands in the region will remain to be settled. (Id.)

Competing claims for the South China Sea islands and shipping lanes have been of long standing; in addition to China and the Philippines, Brunei, Malaysia, Taiwan, and Vietnam have asserted rights in the area, which is thought to be rich in oil and minerals. (Snyder, supra.)