CAS article no. 0130/2016
Courtesy: The Diplomat
In April 2012, around a then-relatively unknown shoal off the coast of the Philippines’ largest island of Luzon, the Philippine Navy apprehended several Chinese fishing vessels. Though it was not known at the time, this incident at Scarborough Shoal would simmer into a major stand-off between the Philippines and China over the ensuing months, eventually sparking the contemporary period of tension and geopolitical intrigue in the South China Sea.
In a moment of bold realpolitik, after both countries agreed to stand down from the shoal, Chinese maritime law enforcement vessels seized the feature. In the aftermath of the 2012 stand-off, Philippines fishermen had been unable to fish freely at Scarborough Shoal. Left with no other recourse, the Philippines government, then led by President Benigno Aquino III, initiated an international arbitration under the compulsory dispute mechanism of the United Nations Convention on the Law of the Sea (UNCLOS), seeking not only to clarify the ambiguities that led to the Scarborough Shoal stand-off in 2012, but Chinese maritime claims in the South China Sea more broadly.
The resolution of that arbitration, which China refused to participate in, has lingered over the South China Sea in the three-and-half years since. Amid continuing Chinese asssertiveness in the region, including island-building in the Spratly group and continued militarization of its Paracel possessions, the resolution of the case loomed large.
At long last, on July 12, the Arbitral Tribunal hearing the case of The Philippines v China released its unanimous findings (https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf). These findings comprehensively supported nearly all of the fifteen claims made by the Philippines and represented a major advancement in interpreting, clarifying and applying the United Nations Convention on the Law of the Sea (UNCLOS).
According to UNCLOS Annex VII (Article 11) [http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf):
“The award shall be final and without appeal… It shall be complied with by the parties to the dispute.” The Arbitral Tribunal’s findings have wider regional and global implications because UNCLOS is commonly referred to as the Constitution of the world’s oceans.
The Arbitral Tribunal’s award may be grouped into five categories. First, the Tribunal ruled that UNCLOS comprehensively allocates rights in the maritime domain. In other words, China’s claim to historic rights, other sovereign rights and jurisdiction in the South China Sea enclosed by its nine-dash line “are contrary to the Convention and without lawful effect” because they exceed the limits set by UNCLOS.Further, the Tribunal found that UNCLOS “superseded any historic rights, or other sovereign rights or jurisdiction, in excess of the limits imposed” by UNCLOS.
Second, the Tribunal ruled that none of the land features in the South China Sea, including Taiwan’s Itu Aba (Taiping), were islands as defined by UNCLOS Article 121 and therefore were not entitled to a 200 nautical mile (nm) Exclusive Economic Zone (EEZ) or an extended continental shelf.
The Arbitral Tribunal meticulously examined the status of land features raised by the Philippines and found that Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, McKennan Reef and Scarborough Shoal were rocks and entitled to a twelve nautical mile territorial sea but not a 200 nm EEZ.
The Tribunal also found that Gaven Reef (South), Hughes Reef, Mischief Reef, Second Thomas Shoal and Subi Reefwere low tide elevations. As low tide elevations these features were not entitled to any maritime zones and were not subject to appropriation. In other words China could not claim these features as its sovereign territory.
One major implication of the Tribunal’s finding on the status of features was that both Mischief Reef and Second Thomas Shoal fell within the Philippines’ EEZ and there was no overlap with the maritime entitlements of Chinese-occupied rocks. Therefore, the Tribunal found that China’s construction of structures and installations on Mischief Reef was not authorized by the Philippines. In addition, the Tribunal found that hydrocarbon rich Reed Bank was a submerged reef formation that fell within the Philippines’ EEZ.
The Tribunal also found that it did not have jurisdiction to decide on Philippine complaints about China’s investment (in a military sense) of Second Thomas Shoal where the Philippines beached the BRP Sierra Madre in 1999 in order to stake out its sovereignty claims. The Tribunal found that Chinese activities, such as interrupting supply to Second Thomas Shoal, were “military activities” and thus fell outside its purview.
Third, the Arbitral Tribunal found that China was in breach of its obligations as a signatory to UNCLOS and as a flag state signatory to the International Maritime Organization’s1972 Convention on the International Regulations for Preventing Collisions at Sea. Specifically, the Tribunal found that the operations of Chinese maritime law enforcement vessels “created serious risk of collision and danger to Philippine ships and personnel.”
The Arbitral Tribunal found that China and its maritime law enforcement vessels violated the Philippines’ sovereign rights in its EEZ by interfering with commercial oil exploration operations, imposing an illegal moratorium on fishing, failing to prevent Chinese flagged vessels from fishing illegally, and preventing Filipino fishermen from engaging in traditional fishing.
Fourth, the Arbitral Tribunal found that China failed to meet its obligations to protect and preserve the maritime environment in the South China Sea. The Tribunal found that “China was aware of, tolerated, protected, and failed to prevent” Chinese flagged vessels from harvesting endangered species on a significant scale and harvesting giant clams in a manner that “is severely destructive of the coral reef ecosystem.”
The Arbitral Tribunal found that China’s construction of artificial islands“caused severe, irreparable harm to the coral reef ecosystem” and “China has not cooperated or coordinated with the other States bordering the South China Sea concerning the protection and preservation of the marine environment.” In addition, “China has failed to communicate an assessment of the potential effects of such activities on the marine environment” caused by such activities.
Fifth, the Arbitral Tribunal found that China’s construction of artificial islands after the Philippines lodged its claims in January 2013 aggravated and extended the legal dispute over maritime entitlements and protection and preservation of the marine environment. The Arbitral Tribunal noted in particular that China’s construction of a large artificial island on Mischief Reef was prejudicial because it “permanently destroyed… evidence of the natural condition of Mischief Reef.”
Historical Perspective
In light of China’s repeated assertions that it would not be bound by the decisions of the Arbitral Tribunal and that itsawardwas “null and void,” it is instructive to revisit China’s involvement in negotiations that led to the adoption of UNCLOS in 1982.
Two eminent legal specialists, James Kraska (Professor of Law and Policy at the Stockton Center for the Study of International Law, U.S. Naval War College) and Erik Franckx (Member of the Permanent Court of Arbitration and head of the Department of International and European Law at Vrije Universiteit, Brussels) addressed this issue at the sixth annual South China Sea conference (https://www.csis.org/events/sixth-annual-csis-south-china-sea-conference) hosted by the Center for Strategic and International Studies in Washington, D.C. on July 12.The Diplomat attended this conference.
Franckx noted that in 1958 there were four conventions related to the law of the sea and only one, a convention on fisheries, included a dispute settlement mechanism. This convention attracted the least number of state adherents and was eventually considered a failed convention.
Negotiation on UNCLOS in 1982, in which China played an active role, put the compulsory dispute settlement mechanism at the center of the convention. UNCLOS was a “package deal” and states that ratified it, such as China, were bound by all its provisions. They were not permitted to pick and choose which provisions they would observe.
Kraska noted that the preparatory materials considered by the III UN Conference on the Law of the Sea, incorporated into seventeen volumes, provide an essential guide to the intention of the state parties as they negotiated UNCLOS. This conference, for example, rejected including historical or pre-existing rights in UNCLOS. This historical record provides the basis for the Arbitral Tribunal’s award that UNCLOS extinguished China’s claim to “historic rights.”
UNCLOS includes a choice of four dispute settlement mechanisms. States are free to choose one or more of these mechanisms: the International Tribunal on the Law of the Sea (ITLOS), the International Court of Justice, an Arbitral Tribunal (Annex VII) or a Special Arbitral Tribunal (Annex VIII). If state parties in a dispute cannot decide on which tribunal or court should hear their case, or if state parties failed to indicate a preference – as was the case with China and the Philippines – then arbitration under Annex VII is compulsory.
UNCLOS also makes provision for the non-appearance of a state party to a dispute, such as China in the current case. The Arbitral Tribunal may proceed to hear claims to a dispute in the absence of one of the parties if the other party requests the Tribunal to do so. In the case at hand the Philippines requested the Arbitral Tribunal to proceed.
State practice since 1982 demonstrates that the Arbitral Tribunal not ITLOS has been the most active in handling substantive cases under UNCLOS. Currently Arbitral Tribunals set up under ANNEX VII have considered seventeen disputes, several of which are pending. The Arbitral Tribunal is assisted in its work by the Permanent Court of Arbitration whose sole role is to be the registry for the proceedings.
China’s Response
China’s response to the findings of the Arbitral Tribunal were entirely predictable given its orchestration of a highly vituperative international propaganda campaign that pulled no punches in denouncing the legality of the Tribunal and the integrity and probity of the judges.
China’s propaganda machine went into high gear once the Arbitral Tribunal’s findings were released.
On July 12 Xinhua(http://news.xinhuanet.com/english/2016-07/12/c_135508211.htm) stated, for example, that the legal proceedings were
“contaminated from the start. A belligerent claimant, a biased arbitrator and an absence of rationality: Hardly fertile ground for impartiality. The arbitration is the sum of its parts, and it was doomed form the beginning. Thus, rather than setting a precedent, the whole process has left an ugly scar on the international legal system.”
China’s Ambassador to the United States, Cui Tankai, speaking separately (http://breakingdefense.com/2016/07/understanding-chinas-reaction-to-south-china-sea-verdict/) after the CSIS South China Sea conference concluded, stated that the Arbitral Tribunal’s proceedings were “a clear attempt to use a legal instrument for political purposes.” He also charged that the Philippines “cynically coordinated” its actions with the U.S. “so-called pivoting to Asia.”
China’s Ministry of Foreign Affairs issued a statement (http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1379492.shtml) after the findings of the Arbitral Tribunal were released repeating earlier assertions that “the award is null and void and has no binding force. China neither accepts nor recognizes it.”
While widespread coverage has been given to China’s verbal barrage denouncing the Arbitral Tribunal, its judges and its findings, much less attention has been given to the statement (http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1379493.shtml) of the Chinese Government issued on July 12 and the follow-on 143-point White Paper (http://news.xinhuanet.com/english/china/2016-07/13/c_135509153.htm) issued by China’s State Council a day later entitled, “China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea.”
According to an analysis [http://www.eastasiaforum.org/2016/07/14/did-china-just-clarify-the-nine-dash-line/] by Andrew Chubb, a doctoral candidate at the University of Western Australia, the Chinese Government’s statement
“strongly implied that China does not in fact claim historic rights over the whole area of the nine-dash line… By referring to the nine-dash-line map as evidence of China’s territorial sovereignty over islands — but not linking it to the EEZ, continental shelf and ‘historic rights’ it also discussed — the statement effectively decoupled the map from China’s maritime rights claims in the area… The new statement puts all of these elements together, but its construction clearly separates the nine-dash line from the claim to ‘historic rights’ and other maritime rights claims.”
Chubb noted with respect to the White Paper that
Perhaps its greatest significance is found in an extremely subtle piece of language: the designation of Nanhai Zhudao [‘the various islands of the South China Sea’]as the source of China’s EEZ and continental shelf claims… these subtle clarifications raise the possibility of a Chinese maritime rights claim in the South China Sea that looks something more like the UNCLOS-compliant one…Driving attention towards this tough-sounding stance on territorial sovereignty provides good political cover for the quiet clarification of China’s maritime rights claims that may be underway.”
Meanwhile, China has reinforced its verbal bombast with symbolic assertions of military might by conducting military exercises off the southeast coast of Hainan islands just prior to and after the July 12 ruling by the Arbitral Tribunal.
On July 18 China announced (http://www.nytimes.com/2016/07/19/world/asia/china-sea-air-patrols.html?_r=0) that it recently conducted a combat air patrol over the South China Sea comprising bombers, fighters, “scouts,” and tankers and this would become a regular practice.
Response by Regional States
The general response by Southeast Asian states to the award by the Arbitral Tribunal overwhelmingly has been low key, muted and in line with recent declaratory policy of the Association of Southeast Asian Nations (ASEAN). The Philippines issued a statement (http://www.dfa.gov.ph/newsroom/dfa-releases/9900-statement-of-the-secretary-of-foreign-affairs-2) on July 12 that welcomed the award and called “on all those concerned to exercise restraint and sobriety… The Philippines strongly affirms its respect for this milestone decision as an important contribution to ongoing efforts in addressing disputes in the South China Sea.”
Vietnam also responded (http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns160712211059) on July 12 by welcoming the award but deferring a statement on its content. A spokesperson for the Foreign Ministry reiterated that “Viet Nam strongly support the settlement of disputes in the East Sea by peaceful means, including legal and diplomatic processes…”
In contrast to the Philippines and Vietnam, Malaysia and Indonesia reiterated variants of the standard formulation embodied in the 2002 Declaration on Conduct of Parties in the South China Sea (DOC) [https://cil.nus.edu.sg/rp/pdf/2002%20Declaration%20on%20the%20Conduct%20of%20Parties%20in%20the%20South%20China%20Sea-pdf.pdf] “to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability…”
issued by Malaysia’s Foreign Ministry on July 13 merely took note that the Arbitral Tribunal had issued an award and stated that it believed
“that all relevant parties can peacefully resolve disputes by full respect for diplomatic and legal processes, and relevant international law and 1982 UNCLOS. Malaysia believes that it is important to maintain peace and stability through the exercise of self-restraint in the conduct of activities that my further complicate disputes or escalate tension, and avoid the threat or use of force in the South China Sea.”
Indonesia issued two statements. The first statement (http://www.kemlu.go.id/en/berita/siaran-pers/Pages/South-China-Sea.aspx) was issued on July 12 before the Arbitral Tribunal’s award was issued. It was short two-sentences that called “on all parties to exercise self-restraint and to refrain from any action that could escalate tensions. Indonesia invites all parties to maintain peace and stability in the region.”
Indonesia’s second statement (http://www.kemlu.go.id/en/berita/Pages/Indonesia-Calls-On-All-Parties-To-Respect-International-Law-Including-UNCLOS-1982.aspx), issued after the award was announced,contained no mention of the Arbitral Tribunal. This statement contained four brief points. Indonesia called on all parties (1) “to exercise self-restraint and to refrain from any actions that could escalate tension, as well as to protect Southeast Asia region particularly from any military activity that could pose a threat to peace and stability, and to respect international law, especially UNCLOS,” (2) to act in accordance with common principles that have been agreed, (3) a commitment to continue to promote the establishment of a zone of peace, freedom and neutrality in Southeast Asia and to strengthen the ASEAN Political and Security Community,” and (4) “to continue peaceful negotiations on their overlapping claims of sovereignty in the South China Sea in accordance with international law.”
Thailand’s Foreign Ministry’s statement (http://www.mfa.go.th/main/en/media-center/14/68341-Statement-of-Thailand-on-Peace,-Stability-and-Sust.html) made no mention of the Arbitral Tribunal or its award. This statement stressed the importance of “restoring trust and confidence among countries in the regions (sic).” The statement then repeated the standard ASEAN formulation for the full and effective implementation of the DOC “and the need for all parties to work expeditiously for the early conclusion of the Code of Conduct in the South China Sea (COC).” The statement ended with a new twist, Thailand’s call “to render the South China Sea a Sea of Peace, Stability and Sustainable Development.”
Of the five other members of ASEAN, only Myanmar and Singapore issued statements while Brunei, Cambodia and Laos remained silent.
Myanmar’s statement (http://www.mfa.go.th/main/en/media-center/14/68341-Statement-of-Thailand-on-Peace,-Stability-and-Sust.html) took note of the award made by the Arbitral Tribunal and that it was “now studying the impact of the award and its possible repercussions within our region and beyond.” The statement called for the peaceful resolution of disputes through friendly consultations and negotiations, in accordance withy universally recognized principles of international law including the 1982 UNCLOS.” The statement also included the call for self-restraint, effective implementation of the DOC and the early conclusion of the COC.
The four-point statement (https://www.mfa.gov.sg/content/mfa/media_centre/press_room/pr/2016/201607/press_2016)
by Singapore’s Foreign Ministry took note of the award by the Arbitral Tribunal and said it was “studying the Award and its implication on Singapore and the wider region.” The statement then reaffirmed Singapore’s support for the peaceful resolution of disputes in accord with international law and UNCLOS. Point three stated that Singapore valued its relations with all parties “bilaterally and in the context of ASEAN” and urged all parties “to fully respect legal and diplomatic processes, exercise self-restraint and avoid conducting any activities that may raise tensions in the region.” Finally, the statement called for the full and effective implementation of the DOC and the expeditious conclusion of the COC.
Response by the International Community
The U.S. State Department (http://www.state.gov/r/pa/prs/ps/2016/07/259587.htm) issued a statement on July 12 that it was “studying the decision (of the Arbitral Tribunal) and have no comments on the merits of the case.” The statement noted that five important principles were worth restating.
First, the United States strongly supports the rule of law and the resolution of territorial and maritime disputes peacefully including through arbitration.
Second, parties to UNCLOS agree to its compulsory dispute settlement process and that the Philippines was acting within the Convention in initiating arbitration against China.
Third, the decision of the Arbitral Tribunal is final and legally binding on both China and the Philippines and the U.S. hopes and expects both parties will comply with their obligations.
Fourth, the U.S. urges all claimants to avoid provocative statements or actions. The award by the Arbitral Tribunal “should serve as a new opportunity to renew efforts to address maritime disputes peacefully.
Fifth, the U.S. urges “all claimants to clarify their maritime claims in accordance with international law – as reflected in the Law of the Sea Convention – with the aim of “narrowing the geographic scope of their maritime disputes, setting standards for behavior in disputed areas, and ultimately resolving their underlying disputes fee from coercion or the use or threat of force.”
Australia’s Foreign Minister, Julie Bishop, issued a media release (http://dfat.gov.au/news/news/Pages/australia-supports-peaceful-dispute-resolution-in-the-south-china-sea.aspx) on July 12 that called on the Philippines and China “to abide by the ruling, which is final and binding on both parties.” The media release was more prescriptive than that of the United States and other regional states, it stated:
“This decision is an important test case for how the region can manage disputes peacefully.
It is an opportunity for the region to come together, and for claimants to re-engage in dialogue with each other based on greater clarity around maritime rights.
Australia urges all South China Sea claimants to resolve their disputes through peaceful means.
We urge all claimants to refrain from coercive behavior and unilateral actions designed to change the status quo in disputed area.
Australia will continue to exercise our international law rights to freedom of navigation and overflight, and support the right of others to do so.”
Japan’s Foreign Minister Fumio Kishida issued a short three-point statement (http://www.mofa.go.jp/press/release/press4e_001204.html on July 12. Kishida noted the award by the Arbitral Tribunal, Japan’s consistent support for the rule of law and called for “the use of peaceful means, not the use of force or coercion, in seeking settlement of maritime disputes.” Kishida’s third point stated:
“As the Tribunal’s award is final and legally binding on the parties to the dispute under the provisions of UNCLOS, the parties to this case are required to comply with the award. Japan strongly expects that the parties’ compliance with this award will eventually lead to the peaceful settlement of disputes in the South China Sea.”
The Way Forward
The response to the award by the Arbitral Tribunal in the case The Philippines v China elicited a number of short general statements by regional states calling for the peaceful settlement of disputes in accord with international law. As noted above, several countries are still studying and digesting the award. China, in contrast, responded predictably with vituperative attacks on the legal process and the probity and integrity of the five judges who heard this case. China declared the award “null and void.”
Nonetheless, the Arbitral Tribunal has rendered its findings and they now form part of the fabric of international law. The Arbitral Tribunal reaffirmed that decisions made through the compulsory dispute settlement mechanism in Annex VII of UNCLOS arebinding as noted in statements made by the Australia, Japan and the United States.
China’s claim to historic rights within its nine-dash line was rejected by the Tribunal as exceeding what UNCLOS permits.This indicates that China’s claim to historic rights in the area where its nine-dash line intersects the EEZs of Vietnam, Malaysia, Brunei and Indonesia is also excessive.
The Arbitral Tribunal’s ruling on maritime entitlements of land features under UNCLOS in the Spratly islands have implications for the wider Indo-Pacific region. If Itu Aba is not an island in the legal sense what is the status of Woody island in the Paracels? Is it an island or a rock? This could be determined by a legal claim under UNCLOS.
If the land features comprising the Spratlys cannot be grouped as unit and claim maritime entitlements what is the status of the Paracels where China has promulgated extended baselines that include Triton island? What is the status of Japan’s Okinotorishima, and is this feature entitled to a 200 nautical mile EEZ?
The stage is now set for a protracted struggle to apply international law over China’s use of lawfare to undermine UNCLOS as the Constitution for the world’s ocean and thereby subvert the underpinnings of a rules-based regional order.
The future is now set for a contestation on three fronts – diplomatic, political and military-strategic.
Diplomacy provides the means for regional states and extra regional powers to give China some breathing space and a face-saving way for China to tone down its high intensity rhetoric. China has repeatedly called for direct negotiations between the countries concerned. One of the first priority areas should be the initiation of unconditional direct talks between Beijing and Manila over their respective historic rights in the waters around Scarborough Shoal and “military activities” in the waters around Second Thomas Shoal.
The award by the Arbitral Tribunal provides a basis for ASEAN and China to agree to implement the DOC in its entirety. This could provide diplomatic cover to address serious issues raised by the Arbitral Tribunal such a protection and preservation of the marine environment and state responsibility for the actions of its flagged fishing boats and maritime law enforcement vessels. The DOC states, “pending a comprehensive and durable settlement of the disputes, the Parties concerned may explore or undertake cooperative activities” such as marine environmental protection and marine scientific research and safety of navigation and communication at sea.
ASEAN and China also could use their consultations on a Code of Conduct as diplomatic cover for incorporating the legal findings of the Arbitral Tribunal in a binding agreement. Both sides, for example, could clarify their claims and enter into negotiations to delimit areas where maritime zones overlap. China’s White Paper on the South China Sea should be explored in discussions to determine if, as Andrew Chubb suggests, China is slowly bringing its claims into accord with UNCLOS.
On the political front the award by the Arbitral Tribunal puts the ball in China’s court. China’s actual behavior in the South China Sea counts for more than its bombastic rhetoric. If Chinese maritime law enforcement ships and state flagged fishing vessels continue to violate the sovereign jurisdiction of the Philippines and other states, these actions should be catalogued and publicized.
If China continues its assertiveness like-minded states should caucus and adopt tailored cost imposition strategies and/or smart sanctions. The role of the ASEAN-Institutes for Strategic and International Studies, the Council for Security Cooperation in the Asia and the Pacific (CSCAP), and ad hoc groupings of relevant think tanks could be enlisted to provide a menu of options. For example, offending Chinese Coast Guard ships could be refused port entry. Regional states could develop a program to report state flagged fishing vessels that are involved in illegal fishing, environmental destruction or armed robbery.
China’s continued violation of the sovereign jurisdiction of the Philippines and other regional states will necessitate a response combining political and diplomatic initiativesalong with military-strategic measures by like-minded states acting in concert.
The leadership role of the United States, acting in concert with its allies and partners, will be crucial in offering China avenues for cooperation and resistance to China when it persists with destabilizing behavior. Maritime security issues should be raised at all relevant regional multilateral institutions, including the East Asia Summit and ASEAN Defense Ministers’ Meeting Plus.
The United States and its allies and partners need to work closely with the Duterte Administration in the Philippines to develop a long-term strategy to see that its rights to sovereign jurisdiction in its EEZ are fully recovered, particularly at Scarborough Shoal, Mischief Reef and Reed Bank.
Finally, the award by the Arbitral Tribunal in limiting maritime entitlements to 12 nm around rocks has expanded the area of high seas open to freedom of navigation and overflight. The United States and its allies and partners should make clear to China that they will resist any attempt to close off these waters.
[Carlyle A. Thayer is Emeritus Professor, The University of New South Wales at the Australian Defence Force Academy, Canberra. Email: c.thayer@adfa.edu.au.]
