A Case for Arbitration: The Philippines' Solution for the South China Sea Dispute

INTRODUCTIONIn January 2013, the Philippines submitted for arbitration a claim against the People's Republic of China for violations of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) after more than a decade of unsuccessful bilateral and multilateral negotiations over territorial claims in the South China Sea (SCS).1 The Philippines is one of five countries challenging China's claims of ownership over the area, rumored to be rich not only in liv1 ing resources, but also in non-living resources.2 China responded to the claim in an unprecedented manner and refused to participate in the UN arbitration process, becoming the first state to decline taking part in an inter-state arbitration under UNCLOS. 3 The Philippines submitted its formal case to the UN arbitration tribunal of judges, an arbitral body, in March 2014 and China must submit a Counter-Memorial responding to the Philippines by December 2014.4The Philippines has three options under UNCLOS for resolving the SCS conflict.5 Although these proceedings default to arbitration when neither state selects a dispute resolution mechanism, the parties could agree to either adjudication or negotiation.6 This Note argues that arbitration would be the most effective and favorable course of action for the Philippines because a decision may be issued as early as May 2015, and its binding effect will deter China from future actions while strengthening the legal basis for other Southeast Asian states' claims in this critical area.7Part I of this Note addresses the historical backdrop against which the effectiveness of the arbitration must be assessed. Part II discusses the Philippines' claims against China, as well as the current state of maritime law under UNCLOS. It lays out a framework by which the arbitral tribunal will likely assess the Philippines' claims by comparison to comparable maritime territorial disputes that have been resolved through the Annex VII arbitral tribunal proceedings, as well as compares this assessment to adjudication and negotiation proceedings. Part III argues that the Philippines will be most successful against China under the Annex VII arbitration process as opposed to resolution through other mechanisms. Part III further contends that arbitration best enables the other nations embroiled in the South China Sea conflict to hold China accountable to the decision and force China to fully respect their rights under UNCLOS.I. BACKGROUNDA. The History of the Territorial DisputeThe SCS is a large, semi-enclosed marginal ocean basin bordered by Vietnam, the Philippines, Malaysia, Brunei, Indonesia, China, and Taiwan.8 It is approximately 550-650 nautical miles (nm) wide and more than 1200 nm long, covering a total area of 3.5 million square kilometers.9 The SCS is located on the major international shipping route between the Pacific and the Indian Oceans, and thus serves as a "vital international passageway." 10 It is bordered by several of the world's most rapidly industrializing countries, and is therefore, central to the Southeast Asian economies, namely due to its abundance of natural resources.11 The SCS has a large and complex marine ecosystem that has attracted coastal states to develop fishing industries.12 In addition, the SCS is rich in oil and gas.13 Ensuring access to these vital resources is an important consideration that sparked the territorial dispute between China and the other coastal states, including the Philippines.14The area in dispute that is most hotly contested is the Spratlys Islands, located on the east side of the SCS.15 The Spratlys Islands consist of more than 140 islets, rocks, reefs, shoals, and sandbanks, including a reef the Philippines call Ayungin, the most recent site of conflict with China.16 Less than forty of the features are above water at high tide; instead, they are either completely submerged or are only above water at low tide.17 The Spratlys Islands are believed to be sitting atop vast oil and gas reserves. …