MEMO FOR: SKP

FROM: HVB
RE: The South China Sea Arbitration
(The Republic of the Philippines v. The Peoples
Republic of China)
DATE: July 20, 2016

ADDENDUM

Timeline of the South China Sea Dispute1

1947: China demarcates its South China Sea territorial claims with a U-
shaped line made up of eleven dashes on a map, covering most of the
area. The Communist Party, which took over in 1949, removed the Gulf
of Tonkin portion in 1953, erasing two of the dashes to make it a nine-
dash line.
__

1994: The 1982 U.N. Convention on the Law of the Sea, under which
the Philippines has taken China to arbitration, goes into effect after 60
countries ratify it. The agreement defines territorial waters, continental
shelves and exclusive economic zones. The Philippines joined the
convention in 1984, and China in 1996. The U.S. has never ratified it.
___

1995: China takes control of disputed Mischief Reef, constructing

octagonal huts on stilts that Chinese officials say will serve as shelters
for fishermen. The Philippines lodges a protest through the Association
of Southeast Asian Nations.
___

1 Associated Press.http://www.usnews.com/news/world/articles/2016-07-
12/timeline-the-china-philippines-south-china-sea-dispute, July 22, 2016.

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1997: Philippine naval ships prevent Chinese boats from approaching
Scarborough Shoal, eliciting a protest from China. The uninhabited reef,
known as Huangyan Island in China, is 230 kilometers (145 miles) off
the Philippines and about 1,000 kilometers (600 miles) from China. In
ensuing years, the Philippines detains Chinese fishermen numerous
times for alleged illegal fishing in the area.
___

2009: China submits its nine-dash line map to the United Nations,
stating it "has indisputable sovereignty over the islands in the South
China Sea and the adjacent waters." The submission came in response to
applications by Vietnam and Malaysia for recognition of extended
continental shelves, which would give them resource rights. The
Philippines, Vietnam, Malaysia and Indonesia protest the Chinese claim.
___

2011: The Philippines files a diplomatic protest after a chartered ship

searching for oil and gas and in Reed Bank near the Spratly Islands
complained of being harassed by two Chinese patrol boats, forcing it to
change course.
___

2012: China takes effective control of Scarborough Shoal after a tense

standoff between Chinese coast guard ships and a Philippine naval
vessel that had stopped a Chinese fishing boat to inspect it.
___

2013: The Philippines brings its dispute with China to the Permanent
Court of Arbitration in The Hague, angering Beijing. A five-member
panel of international legal experts is appointed in June to hear the case.
___

2014: The Philippine government summons China's top envoy in Manila

in February to protest what it said was the firing of a water cannon by a
Chinese government vessel to drive away Filipino fishermen from
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Scarborough Shoal. China ignores the protest and calls its sovereignty
there "indisputable."

China issues a position paper in December arguing that the panel

does not have jurisdiction over the case, because it concerns issues of
sovereignty and boundary definition, which are not covered by the U.N.
convention, and that the Philippines and China had agreed to settle their
dispute only through negotiation.
___

2015: The arbitration panel in The Hague rules in October that it has
jurisdiction over at least seven of the 15 claims raised by the Philippines.
A hearing on the merits of the claims is held in November. China does
not participate.
___

July 12, 2016: The Permanent Court of Arbitration rules that China has
no legal basis for claiming much of the South China Sea and had
aggravated the regional dispute with its land reclamation and
construction of artificial islands that destroyed coral reefs and the natural
condition of the disputed areas. The Philippines, which sought the
arbitration ruling, welcomed the decision, and China rejected it outright.

The UNCLOS provides for the following:

Baseline Determined by connecting points on the coastline from a

large map, this is the starting point for measuring the maritime territory
of a coastal state.

Territorial sea This is the belt of sea 12 nautical miles from the
baseline. In this area, the coastal state exercises sovereign rights and
may arrest foreign ships.

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Contiguous Zone This is the maritime area not exceeding 24 nautical
miles from the baselines. The coastal state exercises authority over this
area to the extent necessary to prevent infringement of its customs,
fiscal, immigration, or sanitation authority over its territorial waters.
This is a response to the practice of foreign ships lingering beyond a
states territorial sea, and thus beyond its criminal jurisdiction, where
they commit acts inimical to the coastal state.

Exclusive Economic Zone or EEZ This is the maritime area within 200
nautical miles from a countrys baseline. Within the EEZ, the coastal
state has rights over the economic resources of the sea, seabed, and
subsoil to the exclusion of other states. However, other nations have the
right of navigation and overflight over this area, subject to the regulation
of the coastal state.

Continental Shelf This is the seabed and subsoil of the submarine areas
adjacent to the coastal state but outside the territorial sea. The
continental shelf extends 200 nautical miles, and in some cases may
extend up to 350 miles, following the natural prolongation of the soil.
The coastal state has the right to explore and exploit the natural
resources in this area, but this right does not extend to other materials
such as shipwrecks.

Quick Reference

a. Note Verbale Originally, the note verbale was used to record the
substance of a conversation or to supplement it. Later it was
employed for communications of minor importance. Today, it is
the customary form of written official communications between
States.

b. International Tribunal for the Law of the Sea - The International

Tribunal for the Law of the Sea is an independent judicial body
established by the United Nations Convention on the Law of the
Sea to adjudicate disputes arising out of the interpretation and

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 application of the Convention. The Tribunal is composed of 21
independent members, elected from among persons enjoying the
highest reputation for fairness and integrity and of recognized
competence in the field of the law of the sea.

Jurisdiction:

The Tribunal has jurisdiction over:

o Any dispute concerning the interpretation or application of the
Convention, and over all matters specifically provided for in any
other agreement which confers jurisdiction on the Tribunal.

o The Tribunal is open to States Parties to the Convention (i.e.

States and international organisations which are parties to the
Convention). It is also open to entities other than States Parties,
i.e., States or intergovernmental organisations which are not
parties to the Convention, and to state enterprises and private
entities "in any case expressly provided for in Part XI or in any
case submitted pursuant to any other agreement conferring
jurisdiction on the Tribunal which is accepted by all the parties
to that case".2

c. Settlement of Disputes in the UNCLOS

o Part XV of the Convention lays down a comprehensive

system for the settlement of disputes that might arise with
respect to the interpretation and application of the
Convention. It requires States Parties to settle their disputes
concerning the interpretation or application of the
Convention by peaceful means indicated in the Charter of the
United Nations.

2 https://www.itlos.org/the-tribunal/, July 22, 2016.

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o However, if parties to a dispute fail to reach a settlement by
peaceful means of their own choice, they are obliged to resort
to the compulsory dispute settlement procedures entailing
binding decisions, subject to limitations and exceptions
contained in the Convention.

o The mechanism established by the Convention provides for

four alternative means for the settlement of disputes:

i. The International Tribunal for the Law of the Sea,

ii. The International Court of Justice,
iii. An arbitral tribunal constituted in accordance with
Annex VII (Arbitration) to the Convention, and
iv. A special arbitral tribunal constituted in accordance
with Annex VIII (Special Arbitration) to the
Convention.

o A State Party is free to choose one or more of these means by

a written declaration to be made under Article 287 (Choice of
Procedure) of the Convention and deposited with the
Secretary-General of the United Nations.

o If the parties to a dispute have not accepted the same

settlement procedure, the dispute may be submitted only to
arbitration in accordance with Annex VII, unless the parties
otherwise agree.