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The South China Sea Arbitration: the Republic of Philippines vs. the People's Republic of China, The South China Sea Dialogues

Legal and Geographical Implications of the South China Sea Arbitration

Author: Clive Schofield

National Asian Security Studies Program Issue Brief, Issue 1, No. 5.1 (2016)

The following are excerpts of the paper:

Introduction

On 12 July 2016 the Arbitral Tribunal in in the case between the Philippines and China delivered its Award, following its earlier 29 October 2015 Award on Jurisdiction and Admissibility.[1] The Tribunal was constituted under Annex VII of the United Nations Convention on the Law of the Sea (LOSC),[2] having been initiated by the Philippines.[3] The Permanent Court of Arbitration in The Hague acted as the registry for the case and venue for hearings.[4] China, for its part, returned the Philippines’ notification of its claims, argued that the Tribunal lacked jurisdiction to hear the case, and has rejected the Tribunal’s Award.[5]

The objective of this Issue Brief is to evaluate concisely the status of the Award before highlighting the main findings of the Tribunal, notably in relation to the regime of islands, historic rights and environmental obligations. The paper then explores the potential implications of the arbitration legally and geographically, both for the South China Sea and beyond.

[…]

Implications of the Arbitration Award for the South China Sea Disputes

As determined by LOSC, the Arbitration Tribunal in the Philippines v. China case could only address issues arising from the interpretation and application of the Convention. This factor, coupled with the fact that the case directly involved only the Philippines and China among the South China Sea claimants, meant that the Tribunal could not resolve the core sovereignty issues at stake – that is, determining which State has sovereignty over which disputed islands in the South China Sea. Nonetheless, the Award of the Tribunal has potentially major implications for the South China Sea disputes, both legally and geographically. The legal basis for any claims on the part of China to historic rights to the waters within the Nine-Dash line was essentially dismissed by the Tribunal.[6] This ruling, coupled with the Tribunal’s finding that none of the Spratly Islands or Scarborough Shoal is capable of generating extended maritime claims has the potential to radically reshape the South China Sea disputes. Indeed, the spatial implications of the Tribunal’s ruling are striking: China’s EEZ and continental shelf claims would be restricted to the northern part of the South China Sea. The extent of disputed waters in the southern part of the South China Sea would be restricted to pockets of contested territorial sea surrounding islands sovereignty over which is disputed, as well as any disputes between adjacent neighbouring States. Additionally, the ruling also creates a pocket of high seas outside any national claim in the central part of the South China Sea (see Figure 1). This scenario would facilitate other South China Sea littoral States, particularly the Philippines as a party to the case, but by extension Brunei, Indonesia and Malaysia, to claim rights over the sea to 200 nautical miles from their coasts as part of their EEZs. Indeed, there is evidence to suggest that some of the South China Sea coastal States, excepting China (and Taiwan), are adopting a more robust stance with regard to asserting jurisdiction over what they regard as national waters, proximate to their mainland and main island coasts.[7]

Given China’s vociferous rejection of the Tribunal’s ruling, any such efforts on the part of the other South China Sea coastal States to enhance efforts to use and patrol waters off their coasts but which lie within the confines of the Nine-Dash line – discredited in international law of the sea though it may be – will be resisted by China. In short, more incidents at sea appear to be highly likely. Such incidents are also likely to involve fishing vessels in light of the large number of such vessels operating in the South China Sea, a symptom of China’s enormous demand for fish, as well as China’s penchant for directing what has been termed a “maritime militia” in conjunction with its well-developed paramilitary maritime forces such as the Coast Guard.[8] There is every indication that the Chinese will continue to operate within the Nine-Dash line and that Chinese maritime forces will seek to protect China’s claims there. This view is supported by China’s recent moves to open new fishing port facilities on the islands of Hainan,[9] and a 2 August ruling of the Chinese Supreme People’s Court indicating that China had the right to prosecute those illegally entering what China claims to be its waters.[10] This sets the scene for increased maritime conflicts in the South China Sea.

Implications beyond the South China Sea

The Tribunal’s Award will resound well beyond the South China Sea. This is particularly so because it addresses notable ambiguities in the Convention. In seeking to clarify such uncertainties in the law of the sea, the Tribunal’s Award has the potential to greatly assist in the development of the law of the sea. The ruling also represents a strong assertion of the governing role of the framework of maritime zones the rights and obligations established through the Convention. Agreement on the spatial limits of these zones and the rights and duties within them was a major achievement of the LOSC as it served to constrain urges towards what is commonly termed “creeping coastal State jurisdiction”. This structure is threatened by exceptions to the rule – arguably a hypocritical attitude on the part of some States – to sign up to the Convention’s terms but still try to maintain more expansive unilateral claims, often justified on hazy historical grounds. The Tribunal’s ruling arguably closes loopholes and counters temptations towards exceptionalism on the part of some States.

The Tribunal’s finding that any historical claims to waters within the Nine-Dash line were extinguished on China becoming a party to the Convention makes it clear that coastal States cannot take a selective approach to the Convention, taking advantage of some provisions – often rights – whilst discarding or ignoring others – frequently obligations. It also serves to counter apparently historically inspired unilateral claims to maritime spaces. The Tribunal’s ruling also represents the first time that an international Court or Tribunal has squarely addressed the Regime of Islands under the Convention. The Tribunal’s effort to clarify the status of insular features and their capacity to generate broad maritime claims means that its award is hugely significant for the development of the law of the sea and international law generally. In particular, the Tribunal’s finding that only features that have a capacity to sustain either a stable community of people or economic activity that is not dependent on outside resources or purely extractive in nature in their natural state represents a major development with significant implications. Although the Tribunal’s Award was specifically focused on insular features in the South China Sea, and its findings are only binding on China and the Philippines in its specifics, the Tribunal’s Award nonetheless has potential relevance to insular features elsewhere. This is especially the case as the ruling is an authoritative and unanimous ruling by an international judicial body, and the Award therefore carries considerable legal weight. As a result of uncertainties over which insular features can generate what maritime zones many States have advanced expansive maritime claims from small islands and these claims are placed in jeopardy. For example, the US claims 200-nautical mile EEZs from several remote Pacific island territories that appear remarkably similar to some of the South China Sea features which the Tribunal found could not generate extended maritime claims. It will be intriguing to see whether the US and other States modify their practice in light of the Tribunal’s award. Considerable resistance is likely.

—-

Notes:

[1] Both the Tribunal’s Award and its Award on Jurisdiction and Admissibility are available on the website of the Permanent Court of Arbitration, available from, https://pca-cpa.org, at https://pcacases.com/web/view/7.

[2] United Nations Convention on the Law of the Sea 1982 (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 396, Article 6 [hereinafter “LOSC” or “the Convention”].

[3] Philippines, “Notification and Statement of Claim on the West Philippine Sea ”, 22 January 2013, available from; http://www.pcacases.com/pcadocs/The%20Philippines%27%20Memorial%20- %20Volume%20III%20%28Annexes%201-60%29.pdf. See also, Philippines Memorial, Vol. III, Annex 1, available from, https://pca-cpa.org

[4] Designated PCA Case No.2013.-19: The Republic of the Philippines vs. The People’s Republic of China on the PCA’s website, https://pca-cpa.org/en/cases/. While the case was hosted by the PCA, it is important to note that the case arises from LOSC.

[5] China has stated that both of the Tribunal’s awards are “null and void” and lack “no binding force.” See, China, “Statement of the Ministry of Foreign Affairs on the Award on Jurisdiction and Admissibility of the South China Sea Arbitration by the Arbitral Tribunal Established at the Request of the Republic of the Philippines,” 30 October 2015, on the Ministry of Foreign Affairs of China website available from http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1310474.shtml and “Statement of the Ministry of Foreign Affairs on the Award of 12 July 2016 of the Arbitral Tribunal Established at the Request of the Republic of the Philippines,” 12 July 2016, on the Ministry of Foreign Affairs of China website available from http://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1379492.htm.

[6] That said, China may retain traditional fishing rights in parts of the South China Sea, notably the lagoon lying within Scarborough Shoal.

[7] See, for example, Clive Schofield, Rashid Sumalia and William Cheung, “Fishing, not oil, is at the heart of the South China Sea dispute”, The Conversation, 16 August 2016, available from https://theconversation.com/fishing-not-oil-is-at-the-heart-of-the-south-china-sea-dispute-63580

[8] Ibid. See also, Rashid Sumalia and William Cheung, Boom or Bust: The Future of Fishing in the South China Sea, ADM Capital Foundation, available from http://www.admcf.org/wordpress/wpcontent/uploads/2015/11/FishSCSea03_11-FINAL-FINAL.pdf; and, James Kraska, “China’s Maritime Militia Upends Rules on Naval Warfare”, The Diplomat, 10 August 2015, available from, http://thediplomat.com/2015/08/chinas-maritime-militia-upends-rules-on-naval-warfare/

[9] Ibid. See also, “New Hainan Fishing Port to Extend China’s Maritime Reach in the South China Sea”, South China Morning Post, 6 August 2016, available from http://www.scmp.com/news/china/diplomacydefence/article/1999794/new-hainan-fishing-port-extend-chinas-maritime-reach

[10] Ibid. See also, James Griffiths, “South China Sea: Beijing vows to prosecute ‘trespassers’”, CNN, 2 August 2016, available from http://edition.cnn.com/2016/08/02/asia/south-china-sea-supreme-court/index.html.

Download  the full publication at https://www.unsw.adfa.edu.au [PDF]

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/

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