The Philippines Filed Merits Memorial on South China Sea Dispute

Posted by Guo Cai – April 8, 2014 @ 15:12.

On March 30, the Philippines submitted its memorial to the International Tribunal on the Law of the Sea (ITLOS) addressing “all issues” in relation to the case it initiated against China on the disputes over the South China Sea (The Republic of the Philippines v. The People’s Republic of China). For a summary of the historic development of this case, please click here. According to a statement made by Philippines’ Foreign Affairs Secretary, Albert del Rosario, the memorial consists of ten volumes of nearly 4,000 pages with more than 40 maps, which contains “the Philippine analysis of the applicable law and the relevant evidence, and demonstrates that the arbitral tribunal has jurisdiction over all the claims made by the Philippines.”

China maintains that the ITLOS has no jurisdiction over the Case, and on Monday China summoned the Philippine ambassador to express it was “extremely dissatisfied and resolutely opposed” to the filing.  Although China has refused to participate in the ITLOS proceedings, on April 3 the Chinese Embassy in Manila released a position paper on the South China Sea Dispute with the Philippines, which summarized China’s position in its defense, both on jurisdictional issues and the merits.

With respect to ITLOS jurisdiction, China dismissed the Philippines’ case by insisting that the case is principally a “territorial dispute over certain islands and reefs of Nansha Islands” and therefore not covered by the UN Convention on the Law of the Sea (UNCLOS)  China is entitled to refuse jurisdiction of ITLOS by the terms of a signing declaration it made in 2006 for disputes over territory, maritime delineation, and historic title or rights.

With respect to the merits, China made an unusually detailed analysis asserting sovereignty over the disputed islands.  For example, on the issue of Scarborough Shoal (known in China as Huangyan Island), China refers to a 1990 statement made by the Philippine ambassador to Germany, documents of the Philippine National Mapping and Resources Authority from 1994, and a Philippine official map from 2011 to prove that the Philippines itself has conceded the Scarborough Shoal is not within its territory.  On the issue of “freedom and safety of navigation,” China asserted its right to establish an Air Defense Identification Zone (ADIZ).  In the position paper, China reiterates its “sincere wish” for the dispute to be settled through bilateral negotiation, urging that parties should honor their consensus on negotiation contained in the 2002 Declaration jointly made by China and all ASEAN countries on the Conduct of Parties in the South China Sea.

The filing of the case was accompanied by a Philippine vessel’s attempt to deliver food, water and troops to the Second Thomas Shoal, where the Philippines stationed a rusting military ship symbolizing its assertion of sovereignty since 1999. Two Chinese coastguard ships tried to block its path. Beijing called the move “provocative,” while the United States characterized China’s blockage as “harassment.” China demanded that the US stay away from the business. The U.S. State Department also expressly supported the Philippines’ use of the dispute resolution mechanisms under the Convention. The Government of Japan supports the Philippines’ “use of procedures” under the UNCLOS.

The disputed waters (contested by China as territorial disputes) carry half of world’s trade and are also claimed in part by Vietnam, Malaysia, Bruei and Taiwan.  Some observers anticipate that ITLOS will not reach a conclusion before 2015.