This article was originally published by the Centre for International Governance Innovation (CIGI) on 18 July 2016
The recent arbitration tribunal’s ruling on the Philippines’ case against China represents a milestone both in international law and in the politics of the South China Sea. In a sweeping, magisterial, and unequivocal decision, the tribunal has moved the goalposts, changed the channel, and put China on the defensive. From this point forward the main question will not be who owns what in the South China Sea, but who does or does not respect international law. China has rejected the decision in the strongest possible terms, with evident (and no doubt heartfelt) emotion. Whether China sticks to that script or ultimately decides that the costs of noncompliance outweigh the benefits is, of course, the $64,000 question. We will have to wait and see. Meanwhile, though, here are key some things about the decision that you may not have noticed:
When it comes to maritime rights, UNCLOS trumps all. The tribunal has made clear that other state-to-state agreements or principles of customary international law can confer maritime rights, but only if they are consistent with UNCLOS principles.Put another way: if you want to be seen to be playing by the rules, you have to be seen to be playing by UNCLOS rules.
There are no disputed islands in the South China Sea. For purposes of international law, only features that are above water at high tide in their natural condition (i.e., not augmented by dredging and landfill), that are capable of sustaining human habitation, and that can sustain an economic life of their own count as “islands” entitled to 12-n.m. territorial seas, 200-n.m. Exclusive Economic Zones (EEZs), and continental shelf rights. The tribunal ruled that none of the Spratly “Islands” meets these criteria. All are “rocks” (dry at high tide but entitled only to a 12-n.m. territorial sea) or “low-tide elevations” or “submerged features” entitled to nothing. While the Philippines case only concerned the Spratly Islands and Scarborough Shoal, the same logic would apply to any other feature under dispute.
By demonstrating mastery of UNCLOS principles elsewhere, China undermined its own case. China (as well as Taiwan and Korea) have vigorously objected to Japan’s claim to an EEZ around Okinotorishima, a remote atoll in the middle of the Western Pacific, on the ground that it is incapable of sustaining human habitation or an economic life of its own. The tribunal (very respectfully) used China’s own words on the subject to shoot down its claims in the Spratlys.
Allocating maritime rights in the South China Sea will now be easy (for the most part). Since none of the disputed features can confer an EEZ or continental shelf rights, littoral states’ EEZs and continental shelves can all be calculated straightforwardly from their coasts.
There are only two remaining important legal questions in the South China Sea.The first question is who owns which “rocks.” This is now far less important than people thought, because collectively the territorial seas that attach to them amount to less than 1.5 percent of the South China Sea’s 3.5 million km2. The relative unimportance of this question opens a window of opportunity for settlement; the claimants might just as well just divide them up now.The second question is whether states are entitled to conduct military surveillance missions in other countries’ EEZs. China says no; the United States and most other countries say yes. This is an important issue because this difference of interpretation frequently gives rise to dangerous encounters between ships and aircraft such as the one that led to the Hainan Island incident in 2002. The Philippines did not ask the tribunal to rule on this issue and it remains unresolved.
The United States no longer needs to conduct Freedom of Navigation Operations (FONOPs) in the Spratly Islands. The sole point of American FONOPs was to demonstrate that the United States did not recognize any potential Chinese claim to maritime entitlements around artificial islands. The tribunal has definitively declared that China has none—at least, none that would result from land reclamation. Whether China enjoys sovereignty over this or that naturally-formed rock is an issue on which the United States takes no position.
China’s artificial island construction is illegal—not because building artificial islands necessarily violates UNCLOS, but because of the way China has done it: by dredging up coral reefs and destroying legally-protected sensitive ecosystems.
China has built an artificial island in the Philippines’ EEZ. Oops.
By insisting that its purpose in building artificial islands was “non-military,” China inadvertently gave the tribunal jurisdiction to condemn them. UNCLOS expressly exempts military matters from mandatory arbitration, and on the one minor point on which the tribunal did not come down hard on China—the standoff between the Chinese Coast Guard and Philippine marines at the Second Thomas Shoal—it was precisely the fact that this was a military issue that led the court to declare that it did not have jurisdiction. Oops.
And the best news of all…
50 years ago, we would not be having this conversation. For most of human history, might made right on the world’s oceans. The strong did what they could, and the weak suffered as they must. No longer. At last we have a well-developed body of law on the basis of which to civilize Earth’s final frontier. Courts and public spaces are supplanting the high seas at sites of contestation. Who says there is no such thing as progress?
About the Author
David A. Welch is a CIGI senior fellow, chair of global security at the Balsillie School of International Affairs and professor of political science at the University of Waterloo. He is also founder of the Japan Futures Initiative. David’s 2005 book, Painful Choices: A Theory of Foreign Policy Change, was the inaugural winner of the International Studies Association ISSS Book Award for the best book published in 2005 or 2006, and his 1993 book, Justice and the Genesis of War, won the 1994 Edgar S. Furniss Award for an outstanding contribution to national security studies.
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3 replies on “10 Things You Should Know About the Recent South China Sea Ruling”
Let us see if UNCLOS had really over-looked or created the loophole in jurisdiction to allow one person to appoint an arbitral tribunal. There are two Parts in UNCLOS that relate to “Settlement of Disputes”. PART XI. SECTION 5: SETTLEMENT OF DISPUTES AND ADVISORY OPINIONS and PART XV: SETTLEMENT OF DISPUTES. I have drawn a flow chart of the processes that are supposed to be followed for easier digestion. (https://www.dropbox.com/s/m5c5m9me14xpt1e/DISPUTES%20SETTLEMENT%20FLOW-CHART%20ON%20INTERPRETATION%20AND%20APPLICATION%20OF%20UNCLOS.docx?dl=0 )
Only after satisfying section 3 (Article 289…) and section 1, should this Article 286 apply. China had repeatedly claimed that, section 1 provisions have not be followed through. “A general, regional or bilateral agreement” between China and ASEAN and agreement between China and Philippines also applied to section 1 not having been satisfied.
Of course, the big elephant in the room is that China claimed exemption from Compulsory Procedure based on section 3 (Article 289).
• Also, does anyone know what were the China and Philippines “declaration” based Article 287-1?
• There does not seem to have a provision other than the ITLOS and/or one of the four Chambers to determine if the section 1 and section 3 have been satisfied and/or valid.
• Since China object to the jurisdiction, it seems proper for Mr. Yanai to consult with the full 21 members of ITLOS or the Seabed Disputes Chamber or one of the established chambers to determine if anything can be done or how to establish the tribunal. (Article Article191, Advisory opinions: The Seabed Disputes Chamber shall give advisory opinions at the request of the Assembly or the Council on legal questions arising within the scope of their activities.)
• Instead, Mr. Yanai decided to bypass all these protocols and set up a tribunal by himself with Philippines. In setting up his own tribunal, Mr. Yanai also bypassed the Article 1, 2 and 3 of the provision in ANNEX VII.
I offer the analysis not antagonize but to provide alternative perspective and may be cool down the verbal wars.
Let us now examine if UNCLOS as ratified by the 160+ countries are really that LOOSE AND CARELESS as to allow the President of ITLOS to form an arbitral tribunal alone in making an expansive “Interpretation and Application” of UNCLOS.
The President of the ITLOS is one of the 21 elected members that have a term limit. In any of the ITLOS case, the President only vote if the 20 members is deadlock in their decision. Under the term of 3 years, Mr. Shunji Yanai being President of ITLOS, he perpetuated THE ONLY 2 one-sided-arbitration (with the arbitral tribunal formed by one party) between two state parties concerning territorial disputes in the history of UNCLOS or PCA or ITLOS. In both this case, Mr. Yanai formed the tribunal by himself in the 30 years of UNCLOS history:
1) On 22 January 2013, the Republic of the Philippines instituted arbitral proceedings against the People’s Republic of China under Annex VII to the United Nations Convention on the Law of the Sea (the “Convention”),
2) On 4 October 2013, the Kingdom of the Netherlands instituted arbitral proceedings against the Russian Federation under Annex VII to the United Nations Convention on the Law of the Sea.
Only two one-sided arbitration with one side forming the arbitral tribunal and all by Mr. Yanai in 30 years of UNCLOS and may be 100+ years of cases that uses the secretarial services of PCA? One may ask why?
Did Mr. Yanai was really given that much authority and by whom? May be we can read the tea leaves from the denial of UN of any knowledge of the case and silence from ITLOS and ICJ.
Based on UNCLOS that were ratified 30 years ago, there are specific guidelines and protocol in “disputes settlement for interpretation and application”. However, not all the arbitral tribunal are properly constituted under the UNCLOS dispute settlement protocol.
Let us step back and examine the process that was exercise in the Philippines v. China over the South China Sea territorial-sea boundary-seabed disputes on the Interpretation and Application of UNCLOS. Of course, one of the many confusions on this arbitration is that it is not by ICJ, not by ITLOS that are sponsored by UN. Rather, it is legally an arbitration tribunal that claimed to have form under Annex VII.
There are at least two major sections that must be overcome among the two Parts in UNCLOS that relate to “Settlement of Disputes”. PART XI. SECTION 5: SETTLEMENT OF DISPUTES AND ADVISORY OPINIONS and PART XV: SETTLEMENT OF DISPUTES. The venue to overcome these provisions before arriving at Annex VII is not specifically spelled and most likely lied with the full 21 elected members of the ITLOS or among one of its 4 or 5 established Chambers with 11 elected members.
Evening when we get to Annex VII, there are still the Article 1, 2 and 3 in constituting the proper arbitration arbitral tribunal that was not followed when the then President of ITLOS made his one man selections. (Please see the many discussions made on this link: http://nationalinterest.org/blog/the-buzz/chinas-big-south-china-sea-dilemma-17097 )
One may first ask, did all the 160+ countries and their expert legal teams that ratified the UNCLOS were really that CARELESS in giving the President of ITLOS that much power to constitute an arbitration tribunal alone and make an expansive “Interpretation and Application” of UNCLOS?