A Valiant Response to a Motley QuestionThe South China Sea Story

The Tribunal concluded that fishermen from Chinese flagged vessels had engaged in harvesting endangered species on a significant scale severely destroying the coral reef ecosystem, but China had failed to prevent such harmful activities.

Aug. 25, 2016, 5:45 p.m. Published in Magazine Issue: Vol 10, No.2,August 12,2016,(Shrawan,28,2073)

On July 12, 2016, an arbitral tribunal constituted under the UN Convention on the Law of the Sea (UNCLOS) issued an award on a case brought, on January 22, 2013, by the Philippines against China in connection with a dispute over the South China Sea. An important shipping corridor, the South China Sea is rich in fish variety and biodiversity coral reef ecosystem, and with substantial energy resources. Brunei, China, Indonesia, Malaysia, Philippines, Singapore and Viet Nam, all have competing claims over it, and is of strategic concern to countries even afar (see Map). The award, which touches upon a number of international law questions which may impact regional geopolitics is equally of concern to internationalists, as it will, no doubt, trigger further debates on the topic of territorial disputes, freedom of navigation, sovereignty and so forth. This brief Commentary Page (derived from a 500-page long Award) is merely aimed at alerting those interested on the topic, not at analyzing all the issues and ramifications.

The Dispute

The dispute, itself fragmented into multiple segments, broadly raised the question of legal basis of maritime rights and entitlements in the South China Sea, the status of certain of its geographic features, and the lawfulness of certain actions taken by China therein.

Philippines’ had asked the Tribunal to: (a) resolve the dispute pertaining to the source of maritime rights and entitlements, specifically, by issuing a declaration that China’s rights and entitlements in the South China Sea must be based on the UNCLOS and not on any claim to historic rights (which China had always maintained); (b) resolve it by addressing the issue of entitlements to maritime zones that would be generated under the UNCLOS by Scarborough Shoal and certain maritime features in the Spratly Islands that were claimed by both the Philippines and China; and (c) resolve a series of associated disputes concerning China’s actions in the South China Sea. The Philippines also sought declarations from the Tribunal that China had violated the UNCLOS by: (i) interfering with the exercise of the Philippines’ rights thereunder, including with respect to fishing, oil exploration, navigation, and the construction of artificial islands and installations; (ii) failing to protect and preserve the marine environment by tolerating and supporting Chinese fishermen in the harvesting of endangered species and their use of harmful fishing methods that damage the fragile coral reef ecosystem; (iii) inflicting severe harm on the marine environment by constructing artificial islands and engaging in extensive large-scale land reclamation at seven reefs in the Spratly Islands; and (iv) aggravating and extending the disputes between them by restricting access to a detachment of Philippine marines stationed at Second Thomas Shoal.

China’s Position 

China, from the very beginning, had rejected the Philippines’ recourse to arbitration and taken a position of neither accepting nor participating in these proceedings. For China, the arbitration was illegal, null and void. As important, while the Philippines had sent a group of prominent jurists to represent it, China had not appointed any. However, despite its decision not to appear formally at any point in these proceedings, China’s position was articulated through several diplomatic notes, both to the Philippines and to the Permanent Court of Arbitration, which served as the Registry in the arbitration, that highlighted that its non-participation was a right under the UNCLOS. It further clarified that the Tribunal lacked jurisdiction to consider any of the Philippines’ claims, for three reasons. First, the essence of the subject-matter of the arbitration was “territorial sovereignty” over the relevant maritime features in the South China Sea. Second, China and the Philippines had agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. Third, the disputes submitted by the Philippines would constitute an integral part of maritime delimitation between the two countries. Fourth, China’s claim in the South China Sea was based on its ‘historic title’ over its waters. The above Chinese views were treated, by the Tribunal, as equivalent to an objection to jurisdiction.

The Tribunal conducted a hearing on jurisdiction, from July 7 to July 13, with Malaysia, Indonesia, Vietnam, Thailand and Japan attending as observers, and on November 24, further hearing, based on which the ruling was issued.

The Ruling

Foremost, the Tribunal established that its constitution was proper, and China’s non-appearance in these proceedings did not deprive it of jurisdiction, and then concluded, on one hand, that the Philippines’ act of initiating this arbitration did not constitute an abuse of process, and on the other, that the China–ASEAN 2002 Declaration on Conduct of the Parties in the South China Sea, the Treaty of Amity and Cooperation in Southeast Asia, and the Convention on Biological Diversity, did not preclude  recourse to the compulsory dispute settlement procedures.

It also asserted jurisdiction over the Philippines’ Submission on the point concerning China’s land reclamation and/or construction of artificial islands, installations, and structures (at Cuarteron Reef, Fiery Cross Reef, North Gaven Reef, Johnson Reef, Hughes Reef, Subi Reef, and Mischief Reef), for they were not “military activities”.  On the other hand, it admitted lacking jurisdiction to consider the Philippines’ Submissions related to the dispute concerning the stand-off between the Philippines’ marine detachment on Second Thomas Shoal and Chinese military and paramilitary vessels, because it involved “military activities”

On the point of China’s claims in the South China Sea, the Tribunal concluded, they did not include a claim to ‘historic title’ over its waters. Further, since no maritime feature claimed by China within 200 nautical miles of Mischief Reef or Second Thomas Shoal, both low-tide elevations, constituted a fully entitled island, none had the capacity to generate an entitlement to an exclusive economic zone or continental shelf. Such was also the case of the Reed Bank, which being an entirely submerged reef formation, did not give maritime entitlements. On merit, the Tribunal, relying on the UNCLOS definition of the scope of maritime entitlements, which may not extend beyond the limits imposed therein, concluded that China’s claims to historic rights or other sovereign rights with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ (the so-called demarcation line used by the Chinese government for its claims on the major part of the South China Sea), are contrary to the UNCLOS and without lawful effect, to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements.

With respect to the status of features in the South China Sea, the Tribunal, relying on information about its tidal conditions, pointed out that, as low-tide elevations, Mischief Reef, Second Thomas Shoal,  Subi Reef, South Gaven Reef, and Hughes Reef did not generate maritime entitlements (to territorial sea, exclusive economic zone, or continental shelf) and were not features that are capable of appropriation, but usable as the baseline for measuring the breadth of the territorial sea of high-tide features situated at a distance not exceeding the breadth of the territorial sea. Its conclusion was similar regarding Scarborough Shoal, North Gaven Reef, McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef, which in their natural condition, are rocks that cannot sustain human habitation or economic life of their own, and accordingly generate no maritime entitlement. Such was also its conclusion about the other high-tide features in the Spratly Islands, which in their natural condition, are not capable of sustaining human habitation or economic life of their own. The Tribunal also stated that no maritime entitlement generated by any feature claimed by China would overlap the entitlements of the Philippines in the area of Mischief Reef and Second Thomas Shoal. Actually, the Tribunal rather declared that Mischief Reef and Second Thomas Shoal are within the exclusive economic zone and continental shelf of the Philippines.

China was considered in breach of obligations under the UNCLOS vis-à-vis the Philippines’ sovereign rights over the living resources of its exclusive economic zone and over the non-living resources of its continental shelf in the area of Reed Bank, for operating its marine surveillance vessels and promulgating its 2012 moratorium on fishing in the South China Sea, without excluding the areas falling within the exclusive economic zone of the Philippines and limiting the moratorium to Chinese flagged vessels. The Tribunal noted that, in May 2013, fishermen from Chinese flagged vessels engaged in fishing within the Philippines’ exclusive economic zone at Mischief Reef and Second Thomas Shoal, which China, failed to prevent. It also failed to exhibit due regard for the Philippines’ sovereign rights with respect to fisheries in its exclusive economic zone and in Scarborough Shoal, from May 2012 onwards, by unlawfully preventing the Philippines’ fishermen from engaging in traditional fishing. 

The above also ties with the point of protection and preservation of the marine environment in the South China Sea. The Tribunal concluded that fishermen from Chinese flagged vessels had engaged in harvesting endangered species on a significant scale severely destroying the coral reef ecosystem, but China had failed to prevent such harmful activities. Also China’s land reclamation and construction of artificial islands, installations, and structures, which were carried out without obtaining any authorization from the Philippines, had caused severe, irreparable harm to the coral reef ecosystem.  It had, thus, also failed to cooperate with other States bordering the South China Sea concerning such activities, and to communicate an assessment of the potential effects of such activities on the marine environment. With respect to the operation of law enforcement vessels in the vicinity of Scarborough Shoal, the Tribunal found that China’s operation of its law enforcement vessels created serious risk of collision and danger to Philippine ships and personnel, and that violated Rules of the Convention on the International Regulations for Preventing Collisions at Sea, 1972.

Finally, the Tribunal, as highlighted in the award, ruling without prejudice to any questions of sovereignty or maritime boundary delimitation, concluded that China had breached its obligations under the UNCLOS as well as under general international law.

Critiques 

As expected, the issuance of the Award was followed by severe criticism, primarily condemning the Tribunal for going beyond its jurisdiction, which was tantamount to abuse of power, and a desecration of the spirit of the rule of law posing a threat to international order. The critiques, among others, remind that under a 2002 Declaration on the Conduct of Parties in the South China Sea, China and ASEAN countries (thus the Philippines) had committed to settle all disputes through friendly negotiation and consultation between/among directly concerned parties, which commitment was re-confirmed, in 2011, by the Philippines and China. Based on the principle of estoppel, therefore, the Tribunal should not have registered the case and, as such, it abused the UNCLOS settlement procedure and exceeded its jurisdiction by accepting a unilateral request of the Philippines.

Actually, China had always considered the South China Sea issue a territorial and maritime delimitation issue, beyond the scope of UNCLOS, a position which it also confirmed, in 2006, by excluding itself from its compulsory maritime delimitation disputes settlement procedures. The arbitral method was also an option already excluded by the Sino-Philippines bilateral agreement. The Tribunal, which chose to ignore it, state the critiques, violated China's right as a sovereign nation and a UNCLOS signatory to choose its own dispute settlement method.

These critiques also view it as a blunder to ignore the historical fact that those islands had been part of Chinese territory since ancient times, which successive Chinese governments had continued to govern through setting administrative divisions, military patrols and conducting salvages at sea, and consider it presumptuous on the part of the Philippines of claiming that the Chinese people never lived or conducted activities therein.

Final Question

From whatever angle on may look at the issue, the Tribunal’s ruling certainly marks a significant step, as it speaks about the primacy of UNCLOS over historic rights, and clarifies the nature of low tide elevations, rocks and islands and the obligations of states in relation to the preservation and protection of the marine environment, under UNCLOS. It will be interesting now to observe how other countries will treat the messages emanating from the rulings in future, and China in the months to come!

 

 

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