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Published online by Cambridge University Press: 07 May 2025
After a long summer replete with tensions and incidents in both the South China and East China Seas, the new year failed to bring renewed hopes for a peaceful resolution to the myriad territorial conflicts casting a shadow on the Asia-Pacific Region. Rather the contrary, renewed incidents, naval rearmament, claims and counterclaims, not always veiled threats to resort to force, and decentralized boycott campaigns and cyberspace clashes. One novelty was the decision by the Philippines to try a new tack in its clash with China, resorting to a tool not previously employed by any of the claimants, namely a request for arbitration under UNCLOS (the United Nations Convention on the Law of the Sea). Although this gambit was rejected by China, and the fate of the case is uncertain at the time of writing, we will examine the legal positions of Manila and Beijing in the context of their wider dispute, and the far-reaching implications of the case.
1 This article emerged from the research for A. Calvo “Shunji Yanai between Manila and Beijing”, The Tokyo Diplomat, 13 February 2013, Shingetsu News Agency.
2 The Vietnamese and the Filipinos respectively call this the Eastern Sea and the West Philippine Sea. “South China Sea” is the generally accepted version term in both official and academic usage internationally, although it would not be surprising to see this reconsidered at some point in the future if tensions persist. Some voices are already calling for the adoption of “South-East Asia Sea”. 3
available here
4 “If the UN tribunal decides to hear the case, any ruling it issues will have wide-ranging legal, political and strategic implications,” Ian Storey, “Manila Ups the Ante in the South China Sea”, here
5 A link to a scanned PDF copy of the original “Application and Statement of Claim” can be found at “Statement by Secretary of Foreign Affairs Albert del Rosario on the UNCLOS Arbitral Proceedings against China to Achieve a Peaceful and Durable Solution to the Dispute in the WPS”, Department of Foreign Affairs, Republic of the Philippines, 28 January 2013, available here
6 “The Department of Foreign Affairs’ Statement on China's Response to the Philippines’ Arbitration Case”, website of the Department of Foreign Affairs of the Philippine Government, 19 February 2013, available at here
7 Note accompanying the “Application and Statement of Claim”, Department of Foreign Affairs, Republic of the Philippines, 22 January 2013, available here
8 “Application and Statement of Claim”, Department of Foreign Affairs, Republic of the Philippines, 22 January 2013, p. 1, available here
9 “Application and Statement of Claim”, here
10 “Application and Statement of Claim”, here
11 “Application and Statement of Claim”, here
12 IV. Jurisdiction of the Tribunal. 40. “Application and Statement of Claim”, p. 16, here
13 “This excessive claim is the core issue of the Philippines’ arbitration case against China.” “The Department of Foreign Affairs’ Statement on China's Response to the Philippines’ Arbitration Case”, website of the Department of Foreign Affairs of the Philippine Government, 19 February 2013, available here
14 Further details of the “nine-dash line”, including a copy of a map on a 7 May 2009 letter to the United Nations Secretary General, appear on II. Factual Background 10-11-12. “Application and Statement of Claim”, p. 4-5, available here
15 II. Factual Background. B. Submerged Features and C. Insular Features “Application and Statement of Claim”, pp. 6-10, here
16 II. Factual Background. B. Submerged Features. 14. “Application and Statement of Claim”, pp. 6-7, here
17 II. Factual Background. C. Insular Features. 20. “Application and Statement of Claim”, p. 8, here
18 II. Factual Background. C. Insular Features. 20. “Application and Statement of Claim”, p. 8, here
19 Romel R. Bagares, “After China snub, what now?”, Vera Files, 3 February 2013, available at here
20 Romel R. Bagares, “After China snub, what now?”, here
21 “Foreign Minister Yang Jiechi on the South China Sea Issue”, website of the Ministry of Foreign Affairs of the People's Republic of China, 12 July 2012, available at here
22 “The Department of Foreign Affairs’ Statement on China's Response to the Philippines’ Arbitration Case”, website of the Department of Foreign Affairs of the Philippine Government, 19 February 2013, available here
23 IV. Jurisdiction of the Tribunal. 32. “Application and Statement of Claim”, p. 14, here
24 VI. Appointment of Arbitrator. 42. “Application and Statement of Claim”, p. 19, here
25 A German and a member of the ITLOS since 1996, his profile can be consulted at “Judge Rūdiger Wolfrum”, International Tribunal for the Law of the Sea, available here
26 For background information on the DOC, and more generally ASEAN policy toward the South China Sea dispute and negotiations with China, see Carlyle A. Thayer “ASEAN's Code of Conduct in the South China Sea: A Litmus Test for Community-Building?”, The Asia-Pacific Journal, Vol 10, Issue 34, No. 4, August 20, available at http://japanfocus.org/-Carlyle_A_-Thayer/3813
27 Romel R. Bagares, “After China snub, what now?” here
28 United Nations Convention on the Law of the Sea, its complete text can be consulted at the United Nations website, available here
29 IV. Jurisdiction of the Tribunal. 34,35,36. “Application and Statement of Claim”, p. 15, here
30 Simone Orendain, “Philippines to Forge Ahead with Sea Dispute Arbitration”, Voice of America, 21 February 2013, available here
31 Julian Ku “Is the Philippines Arbitration Claim Against China “Bizarre” and “Futile”?”, Opinio Juris, 21 February, available at http://opiniojuris.org/2013/02/21/is-the-philippines-arbitration-claim-against-china-bizarre-and- futile/
32 Julian Ku “Is the Philippines Arbitration Claim Against China “Bizarre” and “Futile”?”, here
33 Julian Ku “Is the Philippines Arbitration Claim Against China “Bizarre” and “Futile”?”, here
34 Romel R. Bagares, “After China snub, what now?” here
35 Julian Ku “What Happens if China Tries to Boycott UNCLOS Arbitration? A Japanese Guy Gets to Appoint the Tribunal”, Opinio Juris, 25 January, available here
36 Tarra Quismundo “Panel to hear PH case vs China now complete”, Philippine Daily Inquirer, 26 June 2013, available here
37 “UN picks new judge for Philippines-China dispute”, Kyodo News, 25 June 2013, available here
38 “Chinese scholar: Turbulent years ahead for Philippines-China relations”, Sun Star, 4 April 2013, available here
39 “Press Release: NEW ARBITRATOR AND PRESIDENT APPOINTED IN THE ARBITRAL PROCEEDINGS INSTITUTED BY THE REPUBLIC OF THE PHILIPPINES AGAINST THE PEOPLE's REPUBLIC OF CHINA”, International Tribunal for the Law of the Sea, 24 June 2013, available here
40 “UN picks new judge for Philippines-China dispute”, here
41 “UN tribunal starts arbitration process on PHL-China sea dispute”, GMA News Online, 16 July 2013, available here
42 Ian Storey, “Manila Ups the Ante in the South China Sea”, here
43 Press Release: “Chinese Spokesperson Hong Lei's remarks on China returned the Philippines’ Notification on the submission of South China Sea issue to international Arbitration (2013/02/19)”, website of the Embassy of the People's Republic of China in the Republic of the Philippines, 19 February, available here
44 “Foreign Minister Yang Jiechi on the South China Sea Issue”, website of the Ministry of Foreign Affairs of the People's Republic of China, 12 July 2012, available here
45 Press Release: “Chinese Spokesperson Hong Lei's remarks on China returned the Philippines’ Notification on the submission of South China Sea issue to international Arbitration (2013/02/19)”, website of the Embassy of the People's Republic of China in the Republic of the Philippines, 19 February, available here
46 “Foreign Ministry Spokesperson Hong Lei's Regular Press Conference on February 20, 2013”, website of the Consulate General of the People's Republic of China in Chicago, 21 February 2013, available here
47 “CV of Foreign Ministry Spokesperson Hong Lei”, website of the Ministry of Foreign Affairs of the People's Republic of China, undated, available here
48 Ian Storey, “Manila Ups the Ante in the South China Sea”, here
49 Ian Storey, “Manila Ups the Ante in the South China Sea”, here
50 “The Department of Foreign Affairs’ Statement on China's Response to the Philippines’ Arbitration Case”, website of the Department of Foreign Affairs of the Philippine Government, 19 February 2013, available at here
51 Ian Storey, “Manila Ups the Ante in the South China Sea”, here
52 “Fisherman's death gives cause for Spratlys offensive: PLA general”, China Times, 15 May 2013, available here
53 Elena Aben, “BRP Alcaraz drops Anchor today at Subic”, Manila Bulletin, 4 August 2013, available here
54 Kazuo Ikejiri “Japan to provide Philippines with 10 cutters to beef up maritime patrols”, The Asahi Shimbun, 27 July 2013, available here
55 Ian Storey, “Manila Ups the Ante in the South China Sea”, here
56 Ian Storey, “Manila Ups the Ante in the South China Sea”, here
57 “Chinese scholar: Turbulent years ahead for Philippines-China relations”, Sun Star, 4 April 2013, available here
58 Ian Storey, “Manila Ups the Ante in the South China Sea”, here
59 Concerning this, see also Carlyle A. Thayer “ASEAN's Code of Conduct in the South China Sea: A Litmus Test for Community-Building?”, here
60 Tina G. Santos “Philippine Coast Guard to receive 10 patrol boats from Japan”, Philippine Daily Inquirer, 12 January 2013, available here
61 Japan seeks to help boost Vietnam navy”, Global Times, 10 May 2013, available here
62 Lyle Morris, “Taming the Five Dragons? China Consolidates its Maritime Law Enforcement Agencies”, China Brief, Volume: 13 Issue: 7, 28 March 2013, The Jamestown Foundation, available at here
63 Stephen Blank, “Exploring the Significance of China's Membership on the Arctic Council”, China Brief, Volume: 13 Issue: 14, 12 July 2013, The Jamestown Foundation, available at here
64 Ace Tamayo “Last recourse for PH vs China's maritime claim”, Rappler, 21 May 2013, available here
65 Ace Tamayo “Last recourse for PH vs China's maritime claim”, available at here
66 Alexis Romero, “Phl benefits from China's refusal to join arbitration”, PhilStar, 22 February 2013, available here
67 Julian Ku “Is the Philippines Arbitration Claim Against China “Bizarre” and “Futile”?”, here
68 Hugh Bicheno, Razor's Edge. The Unofficial History of the Falklands War, London, Phoenix, 2007, p. 64.
69 Ace Tamayo “Last recourse for PH vs China's maritime claim”, Rappler, 21 May 2013, available here
70 Mark Valencia “The South China Sea: What China Could Say”, NAPSNet Policy Forum, 7 May 2013, available at here
71 Mark Valencia “The South China Sea: What China Could Say”, here
72 Tuan Pham, 31 May 2013 comments to Mark Valencia “The South China Sea: What China Could Say”, here
73 Mark Valencia, reply to Tuan Pham, 31 May 2013 comments to Mark Valencia “The South China Sea: What China Could Say”, here
74 Tuan Pham, 29 June 2013, second reply to M. Valencia “The South China Sea: What China Could Say”, here
75 For a comprehensive description and analyses of discussions within ASEAN and negotiations between the organization and China, please see C. A. Thayer, “ASEAN's Code of Conduct in the South China Sea: A Litmus Test for Community-Building?,” here
76 Mark Valencia “The danger of pushing China too far on law of the sea”, South China Morning Post, 9 July 2013, available here
77 Mark Valencia “The danger of pushing China too far on law of the sea”, here
78 Roy C. Mabasa “US Group Watching UNCLOS Action”, Manila Bulletin, 10 February 2013, available here
79 Recto Mercene “PHL to use info gathered by US surveillance plane in case vs China”, Business Mirror, 31 July 2013, available here <ftt>1</ftt> Ian Storey, “Manila Ups the Ante in the South China Sea”, China Brief, Vol 13 Issue 3, 1 February 2013, The Jamestown Foundation,
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