By Huy Duong

On April 25 2013, Shunji Yanai, president of the International Tribunal for the Law of the Sea (ITLOS), appointed the final three of the five arbitrators to the tribunal adjudicating legal proceedings that the Philippines has brought against China relating to some of the disputes in the South China Sea.

This is the first time that arbitration has been invoked to settle some aspects of those disputes. The equality of States in international law gives the Philippines an equal chance against China in the disputes for the first time. Accordingly, the Philippines has pinned high hopes on the legal proceedings. Philippines foreign secretary Albert del Rosario has said that the Philippines’ aim is “to achieve a peaceful and durable solution to the dispute.”

China has relinquished its right to appoint one of the five arbitrators, resulting in four arbitrators being appointed by Yanai and one by the Philippines. This might be to the Philippines’ advantage. Notwithstanding the above considerations, the main factor that will determines the outcome will be the strengths and weaknesses of the Philippines’ case.

In its Notification and Statement of Claim on January 22, the Philippines listed thirteen points on which it asked the tribunal to rule. As allowed by Article 298 of UNCLOS, China has declared that it does not accept compulsory dispute settlement procedures for specific categories of disputes. Therefore, the tribunal has no jurisdiction to resolve disputes relating to the delimitation of the territorial sea, exclusive economic zone (EEZ), or continental shelf. As such, it is possible that the tribunal will not have the authority to accept many of the thirteen points in the Philippines’ notification.

Manila has asked the judges to rule that McKennan Reef forms part of the Philippines’ continental shelf and China must therefore end its occupation of the feature. However, McKennan Reef lies within the 12 nautical mile territorial sea of Sin Cowe Island, which is disputed. Therefore it is unlikely that the tribunal has the authority to rule on the matter.

The same applies to Gaven Reef, which lies within the 12 nautical-mile territorial sea of Namyit Island, and to Subi Reef, which, though located about 15 nautical miles from Thitu Island proper, might potentially lie within its territorial sea, depending on how the baselines around Thitu are drawn.

The points in the Philippines’ case regarding Mischief Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef, and regarding the Philippines’ continental shelf off the coast of Palawan, relate to areas that are within 200 nautical miles of some of the larger features of the Spratlys. Given that the tribunal does not have the jurisdiction to resolve disputes relating to the delimitation of the EEZ, it will not have the authority to accept these points unless it is to rule that none of the Spratlys can generate an EEZ.

It is possible that the tribunal might come to the view that the Spratly Islands are in fact rocks under Article 121(3) of UNCLOS and thus do not generate EEZs. However, there is significant risk in relying on that possibility. Up until now, the international courts have avoided making potentially controversial interpretations of Article 121(3).

Consequently, there is a significant chance that the tribunal will be unable to accept many of the Philippines’ thirteen points. Perhaps this is the reason for China being confident enough to take the risk of not participating in the proceedings, thereby continuing its long-standing policy of rejecting third-party arbitration for the South China Sea disputes. If it turns out that the tribunal is unable to accept a large proportion of the Philippines’ thirteen points, although the results will still be a legal victory for the Philippines, China can take advantage of the points that are not accepted to portray the case as an overall vindication of China’s view.

In light of these considerations, the Philippines can avoid overplaying its hand by reviewing its thirteen points and bringing to the tribunal only those that it has a good chance of winning, such as those regarding the legality China’s 9-dash line and whether or not Scarborough Shoal is just a rock under UNCLOS. That strategy will both maintain the Philippines’ chance of legal victory on the points where it is strongest and deny China a public relations victory on the other points. This will make the most of the rare opportunity that the Philippines has to pit its view against China’s on an equal, possibly even slightly advantageous, basis.

The author would like to thank Tuan Pham, Van Pham and Thuy Tran for their valuable comments.

Mr. Huy Duong contributes articles on the South China Sea to several news outlets including the BBC and Vietnam’s online publication VietNamNet.See more by this author.