South China Sea Dispute in the Spotlight at the Asian SIL 4th Biennial Conference

Posted by Guo Cai – December 6, 2013 @ 10:42

On November 14-16, the Asian Society of International Law held its 4th Biennial Conference encompassing a wide range of topics. The highlight of the conference, however, was the ongoing South China Sea dispute between the Philippines and China, a current case before the International Tribunal on the Law of the Sea (“ITLOS”).

In a panel discussion entitled “Contemporary Issues in the Law of the Sea,” Professor Harry Roque from the University of Philippines argued that the Philippines’ claims against China concerned issues within the compulsory jurisdiction of the United Nations Convention on the Law of the Sea (“UNCLOS”)—that is, not involving any reservations made by China. Professor Roque reports that his presentation was immediately rebutted by H.E. Judge Xue, China’s member of the ICJ, who, in her personal capacity (not representing the view of China), opined that the UNCLOS dispute involved “territorial claims” which fall outside UNCLOS jurisdiction. Judge Xue also referred to a code of conduct established between ASEAN States and China pertaining to the South China Sea, under which disputes must be resolved through negotiation and not through arbitration.

The South China Sea arbitral proceeding started on January 22 of this year, when the Republic of the Philippines served a Notification and Statement of Claims to the People’s Republic of China pursuant to Annex VII to the UNCLOS. The Philippines made four claims: (1) China’s nine-dashed line is invalid; (2) China occupied mere rocks on Scarborough Reef rather than significant features; (3) China’s structures on submerged features are illegal; and (4) Chinese harassment of Philippine nationals at sea is illegal.

On February 19, China presented a Note Verbale to the Philippines in which it rejected and returned the Philippines’ Notification. Despite China’s refusal to participate in the ITLOS proceedings, ITLOS completed its appointment of a five-man tribunal to hear the case on April 24, 2013. On July 11, the Tribunal established rules of procedure and an initial timetable for hearing the dispute, requiring the Philippines to file a memorial that fully addresses “all issues” by March 30, 2014.