The South China Sea Arbitration

By Professor Charles H. Norchi

Prof. Charles Norc hiIn July, a tribunal of the Permanent Court of Arbitration sitting in The Hague unleashed a judicial tsunami that could sweep away many Chinese claims to the South China Sea. This summer scholars, students and nation-state elites are studying PCA Case Nº 2013-19, In the Matter of the South China Sea Arbitration.

Littoral States and international users have increasingly asserted access and control claims to the South China Sea through diplomatic notes, official media statements, fishing vessels, drilling platforms, positioning national symbols including personnel on maritime features and by warship deployments. On May 7, 2009 the People’s Republic of China (PRC) conveyed a note verbale to the United Nations Secretary General stating that China “has indisputable sovereignty over the islands in the South China Sea and the adjacent waters and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.” The note was accompanied by a map depicting islands and waters in the South China Sea enclosed by a “nine-dash line”. A Council on Foreign Relations project mapping the claims can be found here.

Chinese Map of the South China SeaThe note verbale appeared to communicate a claim of control over this strategically critical marine space. On January 22, 2013 the Philippines instituted arbitration proceedings against China under the United Nations Convention on the Law of the Sea (UNCLOS) “with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea.”

The Chinese Ministry of Foreign Affairs on April 26, 2013 stated that the arbitration would involve territorial sovereignty claims pertaining to islands and reefs which places the matter beyond the application or interpretation of UNCLOS (the Convention) and hence would not participate. States that have ratified the Convention have the option of submitting disputes concerning interpretation or application of the Convention to The International Tribunal for the Law of the Sea, The International Court of Justice, or to international arbitration as prescribed in the Treaty. There is a provision in UNCLOS (Annex VII Arbitral Tribunal) that allows a case to move forward in the event that States have not agreed upon means of dispute settlement. The first ruling would be on jurisdiction.

Map of the South China Sea Islands (Courtesy of University of Texas Library)I was in Wuhan, China on October 9, 2015 for a China Institute for Marine Affairs/State Oceanic Administration meeting on “Jurisdiction in the South China Sea Arbitration.” There was surprise in the conference room when the Tribunal issued its preliminary award on Jurisdiction and Admissibility favoring the Philippines. Certain scholars felt that this international court exceed its jurisdiction as was queried by Professor Michael Reisman following the decision of the International Court of Justice in Nicaragua v. the United States (case concerning Military and Paramilitary Activities in and against Nicaragua, 1984) wherein the United States asserted the Court lacked jurisdiction and competence. However, this finding of jurisdiction was by a court of international arbitration pursuant to a multilateral treaty, UNCLOS, to which States adhere as a “package deal.” Thus the Tribunal underscored that the Philippines and China are parties to the Convention and that instrument does not permit a State to except itself generally from the mechanism for the resolution of disputes that it establishes. The Tribunal held that China’s non-participation does not deprive the Tribunal of jurisdiction and pursuant to Annex VII of the Convention, a tribunal could be formed and a case could proceed in the absence of a party.

Peace PalaceOn July 12, 2016 The Permanent Court of Arbitration issued its Award in the Republic of Philippines v. The People’s Republic of China or The South China Sea Arbitration. The Award addressed every claim for which the Philippines had sought clarification and relief: (1) China’s claim to historic rights to marine space within a “nine dash line” depicted on Chinese maps, (2) the status of South China Sea features (islands, rocks, reefs, low tide elevations), (3) Chinese activities in the South China Sea and whether these aggravated the dispute (Philippine Notification and Statement of Claim). The claim did not request determination of sovereignty nor the delimitation of any maritime boundaries. The Award (decision) of the Tribunal was entirely favorable to the Philippines.

The Tribunal concluded that UNCLOS was intended to comprehensively allocate the rights of States to maritime areas. Thus China’s claim to historic rights was incompatible with the detailed allocation of rights and maritime zones in the Convention. To the Maritime Zones from the UN Convention on the Law of the Sea (1982)extent China might have had historic rights to resources in the waters of the South China Sea, these were extinguished by the entry into force of the Convention to the extent they were incompatible with the UNCLOS system of maritime zones.

Prior to UNCLOS, historic navigation and fishing by China in the waters of the South China Sea represented the exercise of high seas freedoms rather than a historic right and there was no evidence that any State had exercised exclusive control over these waters. Thus there was no legal basis upon which China could claim historic rights to resources beyond those rights provided in the Convention within the sea areas falling within China’s “nine-dash line”.

The Tribunal considered the status of features in the South China Sea and plausible entitlements to maritime areas those features might generate. Under the Convention (UNCLOS Articles 13 and 121), features that are above water at high tide yield an entitlement to at least a twelve nautical mile territorial sea. Islands pursuant to the Convention can generate an exclusive economic zone of 200 nautical miles and a continental shelf. However, distinct from islands are “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Islands, deriving from UNCLOS Article 121 entitlements, acquire legal characterization as islands depending on (a) the objective capacity of a feature, (b) in its natural condition, to sustain either (c) a stable community of people or (d) economic activity that is neither dependent on outside resources nor purely extractive in nature. Features that are submerged at high tide generate no entitlement to maritime zones. Many of the reefs in the South China Sea had been modified by land reclamation and construction which can have no effect upon entitlements as the Convention classifies features on the basis of their natural condition.

Many of the features in the Spratly Islands chain are currently controlled by States that have constructed installations and maintain personnel. The Tribunal observed that the presence of official personnel on such features does not establish their capacity in their natural condition to sustain a stable community of people. The Spratly Islands were historically used by small groups of fishermen from China as well as other States and Japanese fishing and guano mining enterprises existed in the 1920s and 1930s. However, the Tribunal concluded that temporary use of the features by fishermen did not amount to inhabitation by a stable community and that all of the historical economic activity had been extractive in nature. The decision affirmed that all of the high-tide features in the Spratly Islands are “rocks” that do not generate an exclusive economic zone nor continental shelf.  The Tribunal also held that the Convention does not provide for a group of islands, such as the Spratlys, to generate maritime zones collectively as a unit.

South China Seas (Source UNCLOS and CIA)By interfering with Philippine petroleum exploration, prohibiting fishing by Philippine vessels within that State’s exclusive economic zone, failing to prevent Chinese fishermen from fishing within the Philippines’ exclusive economic zone, and by constructing installations and artificial islands, the Tribunal found that China had violated the Philippines’ sovereign rights with respect to its exclusive economic zone and continental shelf.

The Tribunal further determined that China had breached obligations to preserve and protect the marine environment it had assumed under the Convention (UNCLOS Articles 192 and 194) by its large scale land reclamation and construction of artificial islands at seven features in the Spratly Islands which has caused severe harm to the coral reef. It further concluded that China had breached its obligations under the Convention on the International Regulations for Preventing Collisions at Sea, 1972, and UNCLOS (Article 94) concerning maritime safety when Chinese law enforcement vessels sought to physically obstruct Philippine vessels from approaching Scarborough Shoal.

Under international law there is a duty on parties engaged in a dispute settlement procedure to refrain from aggravating or extending the dispute(s) at issue during the pendency of the settlement process. The Tribunal concluded that by building a large artificial island on Mischief Reef (a low-tide elevation located in the exclusive economic zone of the Philippines), by causing permanent, irreparable harm to the coral reef ecosystem and by permanently destroying evidence of the natural condition of the features in question, China violated its obligation to refrain from aggravating the Parties’ disputes during the pendency of the settlement process.

The Tribunal observed that the “root of the disputes at issue in this arbitration lies … in fundamentally different understandings of their respective rights under the Convention in the waters of the South China Sea” and recalled that it is a fundamental principle of international law that bad faith is not presumed and noted that the Convention provides that the arbitral tribunal “award . . . shall be complied with by the parties to the dispute.” The Center for Strategic and International (CSIS) has published a map depicting the arbitration maritime zone outcomes.

It is in the dynamic nature of international law, including the law of the sea, that prescriptions do not remain constant.  Conflicting demands, expectations and a stream of outcomes spawned by international incidents can cause norms to terminate. It will be the post-decision effects (State behavior, national elite responses, official communications and additional claims) that will continue to shape norms, codes and the common interest in the South China Sea.  In the wake of the Republic of Philippines v. The People’s Republic of China Award, attentive scholars of international law will, in the words of Professor Harold Lasswell, appraise “who says what, in which channel, to whom, with what effect?”

Southern Asia MapReactions thus far have been subdued. The Philippines Secretary of Foreign Affairs stated that his country “strongly affirms its respect for this milestone decision.” Official Chinese news agencies derided the Award claiming it will de-stabilize the region (China Daily). China dispatched planes to artificial islands and may declare an Air Defense Identification Zone (ADIZ). The United States has stated that it is up to China to comply. The Association of Southeast Asian Nations (ASEAN) that comprises ten states declined to mention the South China Sea award in a joint statement although the Philippines and Vietnam wanted the ruling in a communique to respect international maritime law.

Will China adhere, at least in part, to the Award? Will it seek accommodation with its neighbors who are eager for trade? Will the PRC withdraw from UNCLOS? If China flouts the Award, is the dispute settlement provision of UNCLOS diminished? The Award will affect and may spawn future events. Yet, however the relevant states behave, the award of the Permanent Court of Arbitration is now central to the constitutive process of the South China Sea and the world public order of the oceans. As Emerson wrote—“events are in the saddle and ride mankind.”

Read more in the Ocean & Coastal Law Journal’s China Symposium Issue.