Historical Background

The issue between China and Philippines regarding the West Philippine
Sea also known as the South China Sea has been going on for quite a while now.
According to history, most of China’s territories were claimed based on historical events.
However, there had been found several distorted or complex portions of their history, like
how that claim that Mongols, Tibetans, Manchus and Hans are Chinese when the walls
of China was in fact built to put out Mongol and Manchu tribes. However, the Chinese
have consciously promoted the myth that Mongols are actually “Chinese,” and therefore
all areas that the Mongols had once occupied or conquered belong to China. Hence the
present case, China’s claim over Taiwan and the South China Sea are also based on the
grounds that it was a part of the Manchu empire.

If China’s claims are justified on the basis of history, then so should the
territorial claims of Filipinos be based on their history, like how the Malay peoples related
to today’s Filipinos have a better claim to Taiwan than Beijing does, as Taiwan was
originally settled by people of Malay Polynesian descent ancestors who populated the
low-lying coastal plains. According to the Asia-watcher Philip Bowring, “the fact that China
has a long record of written history does not invalidate other nations’ histories as
illustrated by artifacts, language, lineage and genetic affinities, the evidence of trade and
travel.”

China’s claims in the South China Sea are also a major shift from its
longstanding geopolitical orientation to continental power. Bowring pointed out that for so
long, the masters of the oceans were the Malayo-Polynesian peoples and the Chinese
were actually just latecomers to the navigation beyond the coastal waters. He also pointed
out that historically, when Chinese Buddhist pilgrims like Faxian went to Sri Lanka and
India in the fifth century, they went in ships owned and operated by Malay peoples. Such
ships refer to what is now the Philippines had traded with Funan, now southern Vietnam,
a thousand years before the Yuan dynasty. Thus leading to the conclusion that China’s
so-called “historic claims” to the South China Sea are actually not “centuries old.”
The Defense in & Ruling of the Dispute

The Philippines declared the islands as theirs, so China alleged that they
have a better claim over the South China Sea from 2000 years ago to the Han dynasty.
They used a "talk and take" strategy, simply stating the islands are "indisputably" their
sovereign territory, showing all the Chinese territorial waters on Chinese maps. They
claimed that after World War II, the Taiwan government said they had the Chinese claim
to the islands, and in turn occupied the largest island of Taiping. China has used arcane
issues of international law and ancient shards of pottery as evidence of its “indisputable
sovereignty” over the South China Sea. In 2010, China stepped up its activities regarding
its claims to the South China. And just recently, there had been a new boundary proposed
in the South China Sea which entails a probability of adding weight to China’s claim over
the territory in question.

China's stand over the dispute is based on historical facts and international
law. China's sovereign rights and positions are formed in the course of history and this
position has been held by Chinese Government for long. And accordingly, China is ready
to engage in peaceful negotiations and friendly consultations to peacefully solve the
disputes over territorial sovereignty and maritime rights so as to positively contribute to
peace and tranquility in the South China Sea area, but at the same times requests the
foreign countries from getting involved in the matter.

On the other hand, the Philippines argued on the claims of china over the
territory in question. It explained that China is not entitled to exercise what it refers to as
'historic rights' over the waters, seabed, and subsoil beyond the limits of its entitlements
under the Convention. The Philippine Supreme Court however says that even if their
historical basis of right is true, these historical rights have no bearing on sea disputes
under United Nations Convention on the Law of the Sea (UNCLOS). Furthermore, it
extinguished all historical rights of other states, as it had provided the states an Exclusive
Economic Zone (EEZ) as basis of their territory.
 Also, the 9-dash line has no basis whatsoever under international law
insofar as it purports to define the limits of China’s claim to 'historic rights, as the UNCLOS
requires of the EEZ and not the 9-dash line as claimed by China. The Philippines further
argued that the various maritime features relied upon by China as a basis upon which to
assert its claims in the South China Sea are not islands that generate entitlement to an
exclusive economic zone or continental shelf and are not capable of generating
entitlements beyond 12 nautical miles, and some generate no entitlements at all. It added
that China's reclamation activities cannot "lawfully change" rocks into islands. The
Philippines also argued China’s fourth defense pointing out that UNCLOS gave Filipinos
the exclusive rights to fish within the Philippines' Exclusive Economic Zone in the disputed
waters. And such right has been interfered by China when it prevented Filipino fishers
from fishing on the said territory. Also by its destructive and hazardous fishing practices,
its harvesting of endangered species and by building artificial islands in the West
Philippine Sea, the Philippines says that China destructed coral reefs in the South China
Sea, including areas within the Philippines’ Exclusive Economic Zone, which violates the
UNCLOS.

Hence, on July 12, 2016, the Permanent Court of Arbitration published

an arbitration award by the tribunal is final and binding as set out in the Convention. First,
it held that China's claims to historic rights of the South China Sea encompassed by the
relevant part of the 'nine-dash line' are contrary to the as they exceed the geographic and
substantive limits of China's maritime entitlements under UNCLOS. Second, islands of
the South China Sea are within the Exclusive Economic Zone of the Philippines as
provided by the UNCLOS, making all of them a part of the Philippine territory and not of
China. Third, that China has, through the operation of its official vessels at Scarborough
Shoal from May 2012 onwards, violated the United Nations Convention of the Law of the
Sea when it unlawfully prevented Filipino fishermen from engaging in traditional fishing at
Scarborough Shoal. And lastly, China has failed to protect and preserve the marine
environment of the territory in question, through its toleration and protection of, and failure
to prevent Chinese fishing vessels from engaging in harmful harvesting activities of
endangered species at Scarborough Shoal, Second Thomas Shoal and other features in
the Spratly Islands, breaching Articles 192 and 194(5) of the Convention.
Implementing the Decision as an Arbitrator

One of the processes in resolving the matter and implementing the decision
of Permanent Court of Arbitration is through peaceful settlements, which was already
taken up by the parties. However, Philippines still do not possess exclusive jurisdiction
over the territory in question as China still continues to operate there.

To fully implement the decision of the arbitrator the Philippines may file a
petition to the United Nations Security Council and the latter may help implement the
decision upon the approval of its five permanent members. In case one of the five
members do not approve, the decision of the other four members will remain ineffective.

The problem now, is that China is one of the five permanent members of
the UN Security Council. And since it has not given its approval to implement then
decision of the Arbitrator regarding the matter, the decision remains ineffective.

Now, the last resort of the Philippines is to implement the decision through
force and by probably by war. Sadly, China is a much stronger country than the
Philippines. Implementing its rights over the territory through force or violence would be
a suicide. This leaves the Philippines with no other option but to negotiate peacefully with
China in terms of exploring the South China Sea.
 PUBLIC
INTERNATIONAL
LAW

SOUTH CHINA SEA DISPUTE

Submitted by: Luriza Q. Samayla

Submitted to: Atty. Sherrymae O. Velos