The conflict over the South China Sea is not just one of military might and political clout, but also one of legal strategies. The Philippines especially has sought to counter Chinese moves with a turn to international adjudication, and with significant success.
On 12 July 2016, the Arbitral Tribunal in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China) issued a unanimous award largely favourable to the Philippines. China has rejected the ruling, but it may nonetheless be a stepping-stone on the way to a peaceful resolution of the conflict.
Background of the Case
On 22 January 2013, the Philippines instituted arbitral proceedings against China in a dispute concerning their respective “maritime entitlements” and the legality of Chinese activities in the South China Sea. In response, by a diplomatic note dated 19 February 2013 addressed to the Philippines, China expressed its rejection of the arbitration.In China’s view, the Arbitral Tribunaldid not have jurisdiction in the case because China’s acceptance of dispute settlement under the UN Convention on the Law of the Sea (UNCLOS) – the basis put forward by the Philippines – was limited and excluded sea boundary delimitations and the determination of historic titles. Since then, China has continuously refused either to accept or to participate in the arbitral proceedings initiated by the Philippines. The tribunal, however, did not see this as an obstacle: on 29 October 2015, it delivered its first award finding that it had jurisdiction, and, on 12 July 2016, its award deciding on the merits of the dispute.
The 12 July 2016 Award
The award addresses three main substantive issues: (a) the so-called “nine-dash line” and China’s claim to historic rights in the South China Sea, (b) the status of certain maritime features in the South China Sea and (c) the legality of Chinese activities in the South China Sea. Because of jurisdictional limits, however, the Arbitral Tribunal did not deal with matters related to territorial sovereignty over the disputed maritime features between the parties. That means that the tribunal did not decide who owned the maritime features located in the South China Sea, such as the Spratly Islands, that are claimed by both China and the Philippines or any other coastal state in the region. Similarly, the tribunal did not delimit any maritime boundaries between the Philippines and China in the South China Sea.
The “Nine-Dash Line” and the Alleged Chinese Historic Rights
The tribunal dealt with the question whether China’s claims to historic rights within the “nine-dash line” were in conformity with UNCLOS. It first observed that this area – in which China claimed rights, “formed in the long historical course”, to living and non-living resources (i.e. fisheries and petroleum resources) – partially overlaps with areas that would otherwise comprise the exclusive economic zone (EEZ) or the continental shelf (CS) of the Philippines. In the view of the tribunal, UNCLOS establishes a comprehensive maritime zones regime and allocates rights in these areas to the coastal state and other states: in the areas of the EEZ and the CS, the coastal state enjoys exclusive sovereign rights to the exploitation of living and non-living natural resources. Concerning the rights of other states in these areas, the tribunal found that UNCLOS does not permit the preservation of historic rights of any state within the EEZ or the CS of another state. Therefore, after the entry into force of UNCLOS, the historic rights that might have existed for China within the “nine-dash line” in areas that would otherwise include the pre-existing historic rights no longer exist as they are not compatible with UNCLOS. Accordingly, the tribunal concluded that China’s claims were contrary to UNCLOS and exceeded the geographic limits imposed by it.the EEZ or the CS of the Philippines were superseded by the maritime zones regime created by UNCLOS. That means the pre-existing historic rights no longer exist as they are not compatible with UNCLOS. Accordingly, the tribunal concluded that China’s claims were contrary to UNCLOS and exceeded the geographic limits imposed by it.
The Status of Maritime Features
In a next step, the tribunal determined the legal status of certain maritime features occupied by China in the South China Sea. Determining whether these are “islands", “rocks", “low-tide elevations” (LTEs) or “submerged banks” is important because, unlike fully entitled islands, rocks which cannot sustain human habitation or economic life of their own do not generate an EEZ and a CS. Consequently, rocks do not give rights to resource exploitation beyond their territorial sea. Furthermore, LTEs or submerged banks do not generate any maritime zone. The tribunal found most disputed maritime features not to be capable of generating an EEZ or CS: it classified Scarborough Shoal as a rock, and among those features in the Spratly Islands, it found Mischief Reef, Subi Reef and Second Thomas Shoal to be LTEs, and Johnson Reef, Cuarteron Reef and Fiery Cross Reef to be mere rocks. However, contrary to the Philippines’ position, the tribunal concluded that Gaven Reef (North) and McKennan Reef are rocks that are not capable of generating an EEZ or a CS.
The tribunal assessed the status of these features taking into consideration their natural condition, prior to human modifications. In this respect, the Tribunal emphasised that China’s construction of installations and significant reclamation work as well as its maintenance of military or governmental personnel or civilians cannot enhance a feature’s status from rock or a LTE to a fully entitled island capable of generating an EEZ and a CS.the Tribunal emphasised that China’s construction of installations and significant reclamation work as well as its maintenance of military or governmental personnel or civilians cannot enhance a feature’s status from rock or a LTE to a fully entitled island capable of generating an EEZ and a CS.
Chinese Activities in the South China Sea
The tribunal also ruled on the legality of activities of Chinese officials and Chinese vessels in the areas of the South China Sea located within the Philippines’ EEZ and CS. It concluded that China breached the provisions of UNCLOS, in particular by (a) temporarily prohibiting fishing in areas of the South China Sea falling within the Philippines’ EEZ, (b) failing to prevent Chinese vessels from fishing in the Philippines’ EEZ at Mischief Reef and Second Thomas Shoal and (c) preventing Filipino fishermen from engaging in traditional fishing at Scarborough Shoal. Regarding China’s construction of artificial islands, installations and structures at Mischief Reef – a LTE which is part of the Philippines’ EEZ and CS – without the authorisation of the Philippines, the tribunal also found China to have violated UNCLOS.
In addition, with respect to the protection and preservation of the marine environment in the South China Sea, the tribunal found that China breached UNCLOS since it failed to prevent fishermen from Chinese flagged vessels from harvesting (a) endangered species on a significant scale and (b) in such a manner as to destroy the coral reef ecosystem. Furthermore, the tribunal held that China’s land reclamation and construction of artificial islands, installations and structures in the Spratly Islands caused severe, irreparable harm to the coral reef ecosystem.
The Aftermath of the Tribunal’s decision
The Philippines welcomed the award, which vindicated most of its claims, and stated that it remained open to negotiate with China. Conversely, China rejected the decision as illegal, null and void and therefore without any binding effect on itself. Other countries, including the United States, Vietnam, Australia and Japan, backed the Philippines and called on China to respect the tribunal’s decision. On the other hand, Cambodia supported China’s non-acceptance of the award. ASEAN members issued a joint communiqué reaffirming the need to avoid actions that might escalate tensions in the South China Sea and to seek the peaceful resolution of disputes in accordance with international law, including UNCLOS.
The tribunal’s ruling is certainly a legal victory for the Philippines over China as the judges agreed unanimously on almost all the questions submitted by the Philippines, including a declaration from the tribunal that China is obliged to comply with UNCLOS and that the award is legally binding on China.The tribunal’s ruling is certainly a legal victory for the Philippines over China as the judges agreed unanimously on almost all the questions submitted by the Philippines, including a declaration from the tribunal that China is obliged to comply with UNCLOS and that the award is legally binding on China. There is no enforcement mechanism as such under UNCLOS in the event that China fails to comply with the tribunal’s decision, but the Philippines could either resort to diplomatic ways (bilateral or multilateral negotiations within the framework of international organisations) or have recourse to further arbitration under UNCLOS. Moreover, other states and non-state actors could take further actions (i.e. economic sanctions) to put pressure on Beijing to shift its behaviour. But, beyond China’s non-compliance attitude, the award has a value for the states bordering the South China Sea and the rest of the international community for two reasons: (a) the tribunal’s ruling clarified the respective rights and obligations of both China and the Philippines in the South China Sea, thereby facilitating their further relations, and (b) the Tribunal’s findings might have an impact on policy considerations and decision-making of other states as it clarified important legal issues in UNCLOS.
To sum up, it is too early to tell to what extent the tribunal’s decision will actually play a role at both regional and international levels. Nonetheless, what we do know is that, at the moment, things are moderately quiet in the South China Sea comparing to two years ago. Whether this situation could be linked to the tribunal’s ruling is open for discussion. In the meanwhile, it is hard to believe, for instance, that countries such as Japan with Okinotorishima or the United States with Johnson’s Island will withdraw their claims over features that they assert to be fully entitled islands and not mere rocks. In addition, Vietnam continues its land reclamation and construction of two large hangars on Spratly Island in response to China’s construction of military facilities in the Spratlys. Thus, while the tribunal’s intention appeared to be that of making a path forward to solve the problem between China and the Philippines, the long-term effects of its award are still to be seen in the incoming years.
