Foreign Relations & International Law

Litigation Tactics from the China-Philippine South China Sea Arbitration

Sean Mirski
Wednesday, June 11, 2014, 8:00 AM
In the last month, the South China Sea dispute has heated up again – China has parked an oil rig off Vietnam’s coast, prompting anti-Chinese riots across Vietnam; a Vietnamese ship sank after being rammed by (or ramming, depending on which version of this Rashomon story you credit) a Chinese vessel; the Philippines

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In the last month, the South China Sea dispute has heated up again – China has parked an oil rig off Vietnam’s coast, prompting anti-Chinese riots across Vietnam; a Vietnamese ship sank after being rammed by (or ramming, depending on which version of this Rashomon story you credit) a Chinese vessel; the Philippines has arrested several Chinese fishermen; and China has allegedly launched land reclamation projects on several contested reefs. But playing in the background of these immediate crises is a potentially more destabilizing drama. Nearly a year and a half ago, the Philippines launched an arbitration process against China under the auspices of the U.N. Convention on the Law of the Sea (UNCLOS). In its case, the Philippines is primarily making three claims: first, that China claims far more of the South China Sea’s water than is lawful under the Convention; second, and relatedly, that many insular features claimed by China do not generate a 200-nautical mile exclusive economic zone (EEZ) as Beijing asserts; and third, that China has repeatedly violated the Philippine’s rights under the Convention. Manila has clarified that its three claims largely center on China’s activities in and around the Spratly Islands and Scarborough Shoal, but they all arguably apply to China’s conduct in the South China Sea as a whole. Since then, the arbitration has been slowly grinding its way forward: pursuant to UNCLOS, the five members of the tribunal have been chosen (despite China’s nonparticipation), and they issued their first procedural order on August 27, 2013. On March 30, the Philippines submitted its memorial for the case. Although it has not been made public, the memorial apparently weighs in at a hefty ten volumes and nearly 4,000 pages. Its sheer size testifies to Manila’s dedication to its claims, and its willingness to continue prosecuting them despite considerable pressure from Beijing. Most recently, the UN tribunal has issued its second procedural order, asking China to submit its counter-memorial. Although many lessons can be learned from the case, the China-Philippine arbitration speaks powerfully to the importance of a basic litigation tactic: choosing both the issues and the forum in one’s case carefully. Despite having a relatively poorer legal hand in some respects, the Philippines has deftly employed this tactic to try to gain the strategic initiative in its rivalry with Beijing. To fully understand why, it’s necessary to recall that there are really two different legal disputes going on in the South China Sea. The first is a territorial dispute over who owns which insular feature. The second is a maritime dispute over the extent to which states can police the waters near the features that they own. In other words, regardless of who owns a given feature, the contestants also disagree over what that ownership actually confers in terms of maritime control. For example, are the Spratly “Islands” actually rocks (with a 12-nautical mile territorial sea) or islands (territorial sea plus 200-nautical mile exclusive economic zone (EEZ) or continental shelf)? In some instances, these two disputes intersect, but for the most part, they are conceptually distinct. In its claims, Manila has emphasized the maritime legal dispute. In fact, the UNCLOS-based tribunal was likely chosen in part because it does not have jurisdiction to resolve the territorial question. There are a number of reasons why the Philippines has tried to litigate the maritime issues while gliding over the territorial ones. First and perhaps most importantly, the Philippines has the legal edge there – Manila’s maritime legal claims are relatively modest and well-supported, in sharp contrast to China’s vague and potentially wide-ranging ambitions. Indeed, China has arguably advanced claims completely at odds with black-letter maritime law under UNCLOS, as best exemplified in its infamous “nine-dash line.” Recognizing its comparative strength in this area, the Philippines continues to sharpen the contrast by increasingly bringing its maritime claims into line with international law. Evaluating the Philippines’s Territorial Claims But there is a second reason why the Philippines does not want to litigate the territorial question. Simply put, the Philippines has a weak claim to most of the territory of the Spratly Islands and Scarborough Shoal when compared to China. Scholars have had some difficulty evaluating the Philippines’s territorial claims, in part because they depart so radically from established international law. However, most agree that they are tenuous, if not “worthless.” In large part, Manila has tried to base its territorial claims on common sense. The logic is simple: contested features like the Spratly Islands are far closer to the Philippines’s shores (roughly 120 miles) than they are to China’s (roughly 700 miles). Indeed, a quick glance at any map of the South China Sea will demonstrate the force of the Philippines’s argument. In recent protests against Chinese encroachment, Filipinos marched in front of the Chinese consulate in Manila with a giant tape measure, yelling mockingly, “China, do you know how to measure?” Unfortunately for the island nation, it is not clear that this “distance” argument holds much legal water. Under international law, states generally do not hold title to territory merely because of the territory’s relative distance from other states. (Consider Alaska and Hawaii.) In the highly influential Island of Palmas case, the Permanent Court of Arbitration rejected an argument by the United States “that islands relatively close to [a state’s] shores belonged to [it] in virtue of their geographical situation.” Instead, the Court held that “it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size).” It reasoned that a rule granting title based on contiguity would be “wholly lacking in precision and would in its application lead to arbitrary results.” Given this adverse precedent, the Philippines will likely need far more than just a map to press its territorial claims successfully. Manila has also attempted to root its territorial claims in history. According to the Philippine account, a Philippine businessman and lawyer named Tomas Cloma explored fifty-three islands and reefs in the Spratly Islands from 1947 to 1956 in search of better fishing grounds. Manila claims that in so doing, Mr. Cloma gained title to the territory under the international legal theory of “discovery and occupation.” For a short while, Mr. Cloma remained the owner of the Islands, but in 1974, he allegedly transferred control to the Philippines through a Deed of Accession. Since then, the islands have been a part of the Philippine’s sovereign territory. However, scholars suggest that the Philippines’s historical claims are weak, especially when juxtaposed with China’s. In the first instance, no state—including the Philippines—endorsed Mr. Cloma’s claims at the time that he originally made them. In fact, the Philippines asserted ownership of the islands only tepidly until the early 1970s, when—not coincidentally—there was a “black gold rush” as the petroleum potential of the area began to become clear. In stark contrast to the Philippines’s opportunism, China has asserted ownership over the islands for a far longer period of time (although China is certainly guilty of its own opportunistic moves in the dispute as a whole). More importantly, Beijing has produced copious historical evidence that the islands have been part of Chinese territory since ancient times. While China’s territorial claims have not yet withstood the skeptical eye of a neutral arbitrator, they seem far more credible than Manila’s at first glance. Unsurprisingly, the Philippines has argued that China’s historical evidence is irrelevant because Beijing (and all the other disputants) apparently abandoned their claims prior to Mr. Cloma’s discovery. This argument is unlikely to fly in the face of much contrary history. In sum, the Philippines does not have an ideal territorial claim in the South China Sea dispute. But in some sense, it does not matter much, so long as Manila continues to choose the time and place where it litigates.

Sean A. Mirski practices a combination of appellate and international law at Arnold & Porter in Washington, DC, with a focus on public international, national security and foreign relations law. He is also a Visiting Scholar at the Hoover Institution. He clerked for Justice Samuel A. Alito, Jr., on the United States Supreme Court, and for then-Judge Brett M. Kavanaugh on the United States Court of Appeals for the D.C. Circuit. He also served as Special Counsel to the General Counsel of the U.S. Department of Defense. He graduated magna cum laude from Harvard Law School, where he served as Supreme Court Chair for the Harvard Law Review.

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