Rocking the Boat: The Paracels, the Spratlys, and the South China Sea Arbitration

Abstract

On July 12, 2016, an Arbitral Tribunal constituted under Annex VII to the 1982 UN Convention on the Law of the Sea found overwhelmingly in favor of the Philippines in its dispute with the People's Republic of China over maritime claims and other issues in the South China Sea. This piece appraises the decision in light of the events leading up to the current controversy.

To investigate the source of the conflict, one does not have to go back very far. In 1974, during the final stages of the Vietnam War, China ejected South Vietnam from the Paracel Islands-a group of tiny maritime features in the South China Sea claimed by both nations. After a classic "weekend war, "China tried to dampen down the affair by swiftly releasing the prisoners and refusing to be drawn into an international debate.

Within days, though, there was more activity, when South Vietnam dispatched forces to occupy five features in the Spratly Islands, a larger group further to the south of the South China Sea. During this period, South Vietnam, the Philippines, and Taiwan all engaged in the fortification of their respective features reinforcing garrisons, installing military hardware, building runways, and shooting at interlopers. The militarization of the Spratlys had begun, and well before China, the focus of the current arbitration, established a physical presence on the reefs in the vicinity.

By drawing on these earlier events, examined through the lens of United States'diplomatic correspondence of the time, it is possible to both construct a legal path to the arbitration based on the parties' claims to the Spratlys, and critically appraise the Tribunal's reasoning on its jurisdiction over the Philippines' claims against China.