Implications of the July 2016 Arbitral Tribunal Ruling

Author: Nguyen Dang Thang

National Asian Security Studies Program Issue Brief, Issue 1, No. 5.2 (2016)

The following is an excerpt of the paper:

Introduction

For a considerable time now efforts to manage disputes and promote cooperation in the South China Sea have been inhibited by the lack of an equitably defined geography of disputed and non-disputed maritime zones in the South China Sea. The Award rendered by the Tribunal on 12 July 2016 in the so-called South China Sea arbitration initiated by the Philippines against China has put an end to that situation, thus opening up new cooperation opportunities for states in the region. While it left unresolved a number of sovereignty disputes – simply because the Tribunal did not have jurisdiction over certain matters – the Award has to a useful extent untangled the South China Sea disputes and created a new legal landscape. This brief explains the significance of the Award to coastal states bordering the South China Sea and ventures suggestions as to their future policy and action.

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Implications for the future

Activities at sea are regulated by reference to their relative locations in the different maritime zones as divided under UNCLOS, such as territorial seas, exclusive economic zone, continental shelf, high seas and the Area. The Award of 12 July 2016 has, as described in the previous section, enabled states to partition the South China Sea into different maritime zones under UNCLOS scheme. As such, it shed light on the present and future conduct of states in the South China Sea. Four issues may be listed here regarding present and future cooperative activities of states:

• First, ASEAN and China can now know how to implement paragraph 6 of the Declaration of the Code of Conduct in the South China Sea of 2002, which envisages cooperative activities in non-sensitive areas, such as marine environmental protection, marine scientific research, safety of navigation and communication at sea, and combatting transnational crimes.

• Secondly, the biological context of the South China Sea is that valuable fish stocks in the South China Sea are highly migratory and can occur both within the exclusive economic zone and on the high seas, which mandates cooperation according to Article 63(2) of UNCLOS.

• Thirdly, that the SCS is a semi-enclosed sea means coastal states should cooperate with each other in the implementation of their rights and obligations under UNCLOS as envisaged by Article 123. The said article points to several activities which call for cooperation, including living resources management, environmental protection, scientific research… States bordering enclosed and semi-enclosed seas are also encouraged to invite ‘other interested states or international organizations’ to cooperate with them in implementing the article.

• Finally, China and ASEAN has agreed to expedite the consultations on a Code of Conduct in the South China Sea with a view to finishing its outline in the first half of 2017. It is important that the Tribunal’s decision and its implications should be factored into the discussion between China and ASEAN in to the time to come.

On the other hand, there remain at list four issues that the Award has not fully addressed and which should be the subject of discussion between states concerned. They can be listed as follows:

• First, the claimant states in the sovereignty dispute over the Spratly Islands should, in the light of the Award, discuss with each other the status of the remaining features which have not been examined by the Tribunal. This will help clarify further the geographical scope of the disputed waters relating to the Spratly Islands.

• Secondly, the Award is the first judicial decision addressing thoroughly and authoritatively Article 121 of UNCLOS and its application to the features in the Spratly Islands. The Tribunal’s reasoning will be useful for China and Viet Nam in their respective (re)examination of their positions regarding the status of the features in the Paracel Islands. This can help clarify further the disputed waters in the South China Sea as well as their impact on maritime zones of China and Viet Nam in the northern area of the South China Sea.

• Thirdly, the Tribunal has found that Scarborough Shoal has been a traditional fishing ground for fishermen of different nationalities, particularly China, the Philippines and Viet Nam. It is imperative that these three countries discuss an appropriate modality to manage and protect traditional fishing rights of their fishermen.

• Finally, given the fact that the Tribunal, having examined the historical records of the region, found that Scarborough Shoal has been a traditional fishing ground, it would be not far-fetched that the territorial seas around features in the Paracel Islands and Spratly Islands could be considered traditional fishing grounds for fishermen of different countries. Just as in the context of Scarborough Shoal, traditional fishing rights in the Paracel Islands and Spratly Islands again will raise the issue of their management and protection.

Download the full publication at https://www.nla.gov.au/ [PDF]

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Related articles:

Analyses and commentaries: https://seasresearch.wordpress.com/category/events-and-analyses/arbitration-between-the-republic-of-philippines-and-the-peoples-republic-of-china/

Official positions and statements: https://seasresearch.wordpress.com/category/official-positions-and-legal-instruments/arbitration-between-the-republic-of-the-philippines-and-the-peoples-republic-of-china/

Facts on the ground and on the waters: https://seasresearch.wordpress.com/category/south-china-sea-facts-on-the-ground-and-on-the-waters/