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I.

ABSTRACT

The West Philippine Sea dispute, involving China and the Philippines, has been a great source of friction between the two states. China is basing its alleged ownership over the entirety of the South China Sea, which includes the West Philippine Sea, on historical accounts, and documents showing ownership to the entire water mass. In effect, such claim makes the entire South China Sea a part of Chinas internal waters. The Philippines has claim over some portion of the disputed area. This claim is based upon the United Nations Convention on the Law of the Sea (UNCLOS) wherein a coastal nation has Exclusive Economic Zone (EEZ) 200 miles from the baseline in which said nation has the exclusive right to exploit natural resources found within the EEZ. With the brewing conflict and a maritime arms race happening between the contending states, this issue has replaced the Middle East conflicts as a possible source for World War III given the involvement and interest of the United States to expand its influence in Asia and ensure the freedom of navigation in the area, and Chinas insistence on a bilateral approach, to the exclusion of third parties like the United States or the United Nations, and Chinas s aber rattling approach against other claimants, makes this an urgent problem that must be resolved. Based on information gathered throughout the web, it has been established that Chinas claim is full of inconsistencies, false equivalencies, fallacies, all of which are backed up by Chinas immense maritime weapons development spending and deployment of naval forces in the disputed area.

II.

INTRODUCTION The South China Sea is a marginal sea that is part of the Pacific Ocean encompassing an

area from the Singapore and Malacca Straits to the Strait of Taiwan of around 3,500,000 square kilometers (1,400,000 sq mi). The area's importance largely results from one-third of the world's shipping transiting through its waters, and that it is believed to hold huge oil and gas reserves beneath its seabed. It is south of mainland China and Taiwan, west of the Philippines, northwest of Sabah, Sarawak (Malaysia) and Brunei, north of Indonesia, northeast of the Malay Peninsula (Malaysia) and Singapore, and east of Vietnam. With its economic and geopolitical importance, multiple claims by border countries abound lead by China, who argues using a bilateral diplomatic approach, and by the Philippines who wants international arbitration to settle the disputes basing it on the United Nations Convention on the Law of the Sea (UNCLOS). There are three issues in to be discussed in this research. The first is the basis of Chinas claim, its alleged historical ownership of the South China Sea, the Philippines claim under the UNCLOS, and lastly, to determine what has the greater weight in establishing a claim, supposed historical rights or the UNCLOS. Understanding Chinas claim and how those claims work relative to the UNCLOS is one of the approaches made in this research. Available remedies for the Philippines will also be looked at since, as of January 22, 2013, the Philippines have already filed arbitration proceedings against China. Whether or not China will participate in the proceedings remains to be seen. The arbitration petition filed by the Philippines is an important turning point. With judicial efficiency, and barring any hostile attempts by China to derail, if not, to stop, the proceedings, this arbitration will settle who has exclusive control of the vast natural resources found in the disputed area. As it stands, the Philippines can let the wheels of international justice turn. Without sufficient military capability which can offset Chinas military advantage, the Philippines must resort to international arbitration, and at the worst possible scenario, must ask the United States for help in containing Chinese aggressive behavior.

III.

METHODS

Most of the information gathered here is sourced from internet searches. The South China Sea controversy is very much talked about in international circles that therere a lot of resource materials to be gathered, study, and apply in this particular scenario. From local sources, like online newspapers, to foreign news reports and commentaries, there are a lot of information floating around. Its just a matter of finding what is needed and what can be used to advance the purpose of this study: to identify the source of Chinas claim and what remedies are available to the Philippines. As most of the information gathered are from third parties, the impression that the proponent gets is that there are hostile reactions against Chinas attitude regarding the South China Sea dispute. From its insistence on a bilateral approach, using to its advantage its immense economic and military might to gain leverage, to blatantly disregarding the UNCLOS, which China is a signatory, it is clear from the information gathered that China has no intention of letting go of its indisputable sovereignty over the entire South China Sea. The information gathered can be used to dissect the path that China may undertake if the arbitration will not be in its favor. From a third party perspective on Chinas supposed historical rights to the South China Sea, it is clear that China will go to any lengths to maintain the status quo. Sorting and quantifying all the available resources, the proponent chose the needed information based on its impact, relevance, and historical accuracy to the subject matter at hand. Applying concepts of a case digest, the information have been filtered and only those of relevance and importance are shown in this study.

IV.

RESULTS

This illustration shows the extent of Chinas claim to the entire South China Sea. As shown in the picture, China is asserting indisputable sovereignty within the line. CHINAS CLAIM

China claimed sovereignty over 90% of the water and all the islands in the South China Sea by drawing a nine-dash line covering 90% of that sea, prompting her neighbors to protest that her claim contradicts international law, specifically the 1982 United Nations Convention on the Law of the Sea (UNCLOS). China justified her exaggerated claim on the South China Sea by arguing that ancient Chinese texts mentioned certain islands in the South China Sea, proving that Chinese people

were the first to navigate that sea and the first to discover the islands in the area, that China was the first country to exercise jurisdiction over the islands and that the South China Sea was Chinas historic water. China further argued that in 1947, when China published a map of that sea with an eleven-dash line (predecessor of the nine-dash line), nobody protested, proving that the world had accepted Chinas claim. However, close examination shows that Chinas arguments are baseless. NamViet News refuted the historical claim of China on a lot of points: 1. The first point, regarding Chinas 1947 map of the sea, was not protested by anyone because it was ignored. The map has as much legal weight as the traditional Chinese political thought which said that the world (All-under-heaven) is under the authority of Chinese emperors. 2. Countries with historical borders with the Arctic Ocean formed the Arctic Council to divide the Arctic natural resources according to the rules of the UNCLOS. China, without any historical borders to the Arctic, petitioned to join the Arctic Circle in order to have a share of the resources found therein arguing that the Arctic Circle common heritage for all of humankind. If the Arctic Ocean is a common heritage for all of humankind, then the South China Sea is a common heritage for all the peoples who live on its shores, not only for China. 3. Peoples of the Austronesian language family, more specifically the Malayo-Polynesian branch, were the first to navigate the South China Sea. Between 5000-2500 BC, they crossed the South China Sea to populate the Philippines, Indonesia and Malaysia. From Southeast Asia, they crossed the Pacific Ocean to populate Melanesia and Micronesia by 1200 BC, Polynesia by 1000 BC, Easter Island by 300 AD, Hawaii by 400 AD and New Zealand by 800 AD. Since the Austronesian peoples (ancestors of the Filipinos, Indonesians and Malaysians) were the first to navigate the South China Sea, they were the first to discover the islands in the area and to fish in the associated waters. Though they did not invent writing to record their discovery, it would be ludicrous to deny their discovery of the islands so close to the Philippines and Indonesia in light of the fact that they were able to discover the various islands in the vast Pacific Ocean. 4. The South China Sea has always been an international waterway since prehistory. Indian traders navigated that sea early in prehistory, introducing Indian philosophies to

Southeast Asia, leading to the formation of many Indianised states on Islands Southeast Asia in ancient time. One of those states was Srivijaya, located on Indonesia in the 7th century and exercised prominent maritime activities in the South China Sea. 5. Attacking precedent, NamViet states: even if Chinese people were the first to navigate the South China Sea (not true), China cannot claim sovereignty over the water that is used by many other countries. The Philippines, Indonesia and Malaysia do not claim sovereignty over the South China Sea, the Indian Ocean and the Pacific Ocean even though their Austronesian ancestors were the first to navigate those waters. Norway does not claim sovereignty over the Norwegian Sea even though the Norsemen (Vikings) were the first to navigate that water to populate Iceland and Greenland in the 9th century. Portugal does not claim sovereignty over the water off the West African coast, the water around the Cape of Good Hope and the Indian Ocean even though Portuguese under Bartolomeu Diaz and Vasco da Gama were the first to navigate those waters in 1488 and 1498. Spain does not claim sovereignty over the Atlantic Ocean, the Magellan Strait and the Pacific Ocean even though Spaniards under Christopher Columbus and Ferdinand Magellan were the first to navigate those waters in 1492 and 1521. Russia does not claim sovereignty over the Bering Sea even though Russians under Vitus Bering were the first to navigate that water in 1741. 6. Ancient Chinese texts which mention the South China Sea islands do not describe discovery of the islands but only describe general knowledge about the islands, knowledge shared among the fishermen, merchants and pirates from various countries who navigated that sea since prehistory. Chinese writers were the first to write about the South China Sea islands because China invented writing earlier, not because Chinese people were the first to navigate that sea or the first to discover the islands. (Source not provided) 7. Ancient Chinese texts which mention the South China Sea islands mention those islands as foreign lands, not as Chinas territories, and do not describe which activities the authority of ancient China exercised on the islands. Therefore, there is no proof of Chinas jurisdiction over the islands. In the case of Scarborough shoal (part of the Philippines claim in the disputed area), China argued that Kublai Khans officials were the first to map out and to establish jurisdiction over those islands in 1279. However,

Kublai Khan was the Great Khan of the Mongol Empire who conquered China. If any country can inherit Scarborough shoal from Kublai Khan, it is Mongolia, not China. 8. Official maps of the Yuan Dynasty and Ching Dynasty, including but not limited to Da Qing Zhi Sheng Quan Tu (published in 1862) and Huang Chao Yi Tong Yu Di Zen Du (published in 1894), show that the southernmost extent of China ends at Hainan islands. 9. The Chinese empire originated on the Yellow river basin and eventually conquered many lands and peoples, including Tibet and Sinkiang, which is why China is a multiethnic, multi-languages country. At the time when China allegedly discovered the South China Sea islands, Chinas border on the mainland was not what it is today, Tibet and Sinkiang were independent countries of the Tibetans and the Uyghurs, respectively. The Tibetans and the Uyghurs are demanding self-determination. Three dozens Tibetan monks have burned themselves to death to draw attention of humanity to the sufferings of their people under Chinas rule. If China is serious about its historical claim, it should return to its historical border on the mainland, return Tibet and Sinkiang to the Tibetans and the Uyghurs, respectively. As pointed out by NamViet, news from Vietnam, another claimant to the parts of the South China Sea, there are a lot of consistency issues, historical precedents, and legal implications to Chinas claim to the South China Sea. Which, as said in the report, makes China wary of any international arbitration since, from the face of it, Chinas claim are very hard to prove in the courts of law. Another publication which assesses Chinas historical rights are from the Diplomat, specifically the article published by Mohan Malik, Professor at Asia-Pacific Center for Security Studies, Honolulu. Though his piece is not meant to be an encompassing idea on whats happening in the South China Sea, he sheds a little light in the problems of Chinas historical claim. Since the end of the Second World War, China has been redrawing its maps, redefining borders, manufacturing historical evidence, using force to create new territorial realities, renaming islands, and seeking to impose its version of history on the waters of the region. The passage of domestic legislation in 1992, Law on the Territorial Waters and Their Contiguous Areas, which claimed four-fifths of the South China Sea, was followed by armed skirmishes with the Philippine and Vietnamese navies throughout the 1990s. More recently, the dispatch of

large numbers of Chinese fishing boats and maritime surveillance vessels to the disputed waters in what is tantamount to a peoples war on the high seas has further heightened tensions. To quote Sujit Dutta, Chinas unmitigated irredentism [is] based on the...theory that the periphery must be occupied in order to secure the core. This is an essentially imperial notion that was internalized by the Chinese nationalistsboth Kuomintang and Communist. The current regimes attempts to reach its imagined geographical frontiers often with little historical basis have had and continue to have highly destabilizing strategic consequences. Apparently, one reason Southeast Asians find it difficult to accept Chinese territorial claims is that it would amount to acceptance of the notion of Han racial superiority over other Asian races and empires. Says Jay Batongbacal of the University of the Philippines law school: Intuitively, acceptance of the nine-dash line is a corresponding denial of the very identity and history of the ancestors of the Vietnamese, Filipinos, and Malays; it is practically a modern revival of Chinas denigration of non-Chinese as barbarians not entitled to equal respect and dignity as peoples. The history question is very complex and defies an easy explanation. If historical claims had any validity then Mongolia could claim all of Asia simply because it once conquered the lands of the continent. There is absolutely no historical basis to support either of the dash-line claims, especially considering that the territories of Chinese empires were never as carefully delimited as nation-states, but rather existed as zones of influence tapering away from a civilized center to the periphery of alien barbarians. This is the position contemporary China took starting in the 1960s, while negotiating its land boundaries with several of its neighboring countries. But this is not the position it takes today in the cartographic, diplomatic, and low-intensity military skirmishes to define its maritime borders. Historical rights are difficult to prove, especially those dating back in the B.C. era. Chinas claim, as shown in these 2 articles, clearly show that Chinas claim cannot be substantiated and full of fallacies making it difficult to prove its historical rights before the courts of law. To understand the Philippine claim to the West Philippine Sea, a part of South China Sea, UNCLOS, and the relevant UNCLOS provisions must provided. The United Nations Convention on the Law of the Sea is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which

took place between 1973 and 1982. The Law of the Sea Convention defines the rights and responsibilities of nations in their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. The Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS came into force in 1994; a year after Guyana became the 60th nation to sign the treaty.[1] As of October 2012, 164 countries and the European Union have joined in the Convention. However, it is uncertain as to what extent the Convention codifies customary international law.

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The above illustration shows how and to what extent does a coastal state enjoys the benefits of the natural resources found within its 200 nautical mile Exclusive Economic Zone (EEZ).

The dark green portions show countries that signed and ratified the UNCLOS. Note that both China and the Philippines are signatories and ratified the said convention. Light green parts are countries that signed the UNCLOS but never ratified it. The grey areas are countries that never signed nor ratified the Convention. The Philippines claim extends to the legally mandated extent as provided by the UNCLOS. The advent of Chinese intrusion in to the Philippines 200 mile EEZ sparked the hostility between them until the Philippines filed a case against China in an ad hoc arbitration in accordance to Annex VII of the UNCLOS on January 22, 2013. UNCLOS sets forth in Part XV rules for the resolution of disputes between State Parties arising out of the interpretation or application of UNCLOS. Pursuant to Article 287(1) of UNCLOS, when signing, ratifying, or acceding to UNCLOS, a State may make a declaration choosing one or more of the following means for settling such disputes: the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany; the International Court of Justice in The Hague, The Netherlands; ad hoc arbitration (in accordance with Annex VII of UNCLOS); or a special arbitral tribunal constituted for certain categories of disputes (established under Annex VIII of UNCLOS).

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Pursuant to Article 287(3) of UNCLOS, arbitration under Annex VII is the default means of dispute settlement if a State has not expressed any preference with respect to the means of dispute resolution available under Article 287(1) of UNCLOS (and has not expressed any reservation or optional exceptions pursuant to Article 298 of UNCLOS). Likewise, pursuant to Article 287(5) of UNCLOS, if the parties have not accepted the same procedure for the settlement of the dispute, arbitration under Annex VII is the default means of dispute settlement (again subject to same exceptions or reservations pursuant to Article 298).

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The illustration shows the extent and distance from the baseline where the EEZ is in effect. It also contains the reason why there are several disputes in the area, the existence of vast sea and mineral resources located therein. CHINAS RIGHTS VS THE UNCLOS As illustrated in the first few chapters, Chinas claim to the entirety of the South China Sea has no basis and full of inconsistencies. As a signatory, albeit with conditions, China has to respect whatever treaty stipulations provided for in the UNCLOS. Although the UNCLOS respects historical claims to areas beyond the EEZ of said country, it does not change the fact that the Chinese designs are hampering regional growth and provides economic and military jitters across the region. Claims based on shaky historical grounds are not sufficient to wantonly disregard the UNCLOS provisions that were ratified by China. Chinese assertions based on historical claims must be substantiated by a clear historic title. It should be noted that under public international law, historical claims are not historical titles. A claim by itself, including historical claim, could not be a basis for acquiring a territory. Under international law, the modes of acquiring a territory are: discovery, effective occupation, prescription, cession and accretion. Also, under public international law, for a historical claim to mature into a historical title, a mere showing of long usage is not enough. Other criteria have to be satisfied, such as that the usage must be open, continuous, adverse or in the concept of an owner, peaceful and acquiesced by other states. Mere silence by other states to ones claim is not acquiescence under international law. Acquiescence must be affirmative such that other states recognize the claim as a right on the part of the claimant that other states ought to respect as a matter of duty. There is no indication that the international community has acquiesced to Chinas so-called historical claim. Naming and placing on maps are also not bases in determining sovereignty. In

international case law relating to questions of sovereignty and ownership of land features, names and maps are not significant factors in the determination of international tribunals determination of sovereignty. Many of the findings in this study came from third party observers, other claimants, and Philippine sources. There was a difficulty in locating sources from China to have a balanced

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view on the study. What is present during the search is Chinas exaggerated historical claim, Chinas refusal to accept and participate in the arbitration, and Chinas insistence on a bilateral approach to the problem.

V.

DISCUSSION Based on the observations, it is clear that China will never let go of its sovereignty over

the disputed area. With shaky historical basis, inconsistent presentation of their historical claims, and yet possessing tremendous economic and military might, it is evident that China will not be really affected even with an adverse ruling by the Ad Hoc Trbiunal. The fact that the UNCLOS has no means of enforcing their decision, based on the reports, articles, and commentaries observed, it will be a test of the entire UNCLOS treaty as far as dispute resolution goes. Add the fact that China, as a member of the UNs Security Council with veto power, can hamper any military or economic sanctions that the tribunal can sanction in case the dispute is resolved in favor of the Philippines. In summary, as presented by the studies in the previous chapters, Chinese claims over the entire South China Sea are marred with inconsistencies and fallacies. And with China refusing to participate in the arbitration proceedings, electing instead a bilateral approach, the Philippines, with its gross disadvantage in terms of economic and military might, has no other recourse but to do what it did, which personally the proponent agrees. The filing of an arbitration case before the UNCLOS is the only reasonable and feasible way to obtain the relief prayed for. The proponent therefore concludes that, Chinas claim cannot stand in the eyes of international law. But with the evident deficiency in terms of economy and military of the Philippines, the latters legal claim cannot be exercised without international support. There is also the matter that should China get an adverse ruling by the Ad Hoc Tribunal, theres no one who can stop China from withdrawing from the UNCLOS and pursue a unilateral approach in resolving the dispute. Hopefully such action by China will not materialize, another set of questions come to mind. Is the Philippines ready to face a China that is no longer bound by the UNCLOS? Is the Philippines ready and willing to accept an adverse judgment by the Ad Hoc Tribunal? How would the Philippines react to a Chinese unilateral approach to settle the dispute?

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In the broader context, the results show that Chinas refusal to participate in the arbitration proceedings can equate to Chinas refusal to abide by international law. In the South China Sea dispute, there are other claimants aside from the Philippines. Taiwan, Malaysia, Indonesia, Vietnam, Thailand, etc. An adverse ruling for China in the Sino-Philippine dispute will have repercussions to the other claimants, especially to those who have already concluded a treaty of joint exploration with China. Although their rights will not be impaired, it can make other claimant parties wary of Chinas reaction and be mindful about future maritime relations with China.

SOURCES: http://www.interaksyon.com/article/53321/ph-finally-files-case-vs-china-before-unclos-tribunalover-disputed-territories http://www.academia.edu/1192973/Dispute_Settlement_Provisions_of_UNCLOS http://namvietnews.wordpress.com/chinas-rise-is-a-big-reason-to-ratify-the-law-of-the-seaconvention/refuting-chinas-nine-dash-claim/ http://www.thechinastory.org/2013/04/the-paradox-of-the-south-china-sea-disputes/ http://thediplomat.com/2013/08/30/history-the-weak-link-in-beijings-maritime-claims/4/ http://en.wikipedia.org/wiki/South_China_Sea http://opiniojuris.org/2013/01/23/will-china-participate-in-the-unclos-arbitration-with-thephilippines/ http://kluwerarbitrationblog.com/blog/2013/08/28/an-update-on-the-philippines-china-unclosarbitration/ http://www.pca-cpa.org/showpage.asp?pag_id=1288 http://globalnation.inquirer.net/34031/ph-sovereignty-based-on-unclos-principles-ofinternational-law