The Philippines argues that Chinese claims within the nine-dash line are contrary to the United Nations Convention on the Law Of the Sea (UNCLOS). The Philippines has been encouraged by a recent International Court of Justice (ICJ) judgment which refutes the idea that offshore land features can generate claims to vast maritime spaces. Even if China could establish title to the features, so the Philippines argues, China’s maritime law enforcement actions would constitute an unlawful interference with Manila’s rights to exploit resources in its sector of the South China Sea.
This unilateral move predictably angered the Chinese. Manila’s backers in the West applauded but they may come to regret their uncritical cheering of the Notification, which has little chance of success. Rather than clearing up the jumble of contending claims in the South China Sea, the filing will make their resolution more difficult and implicate the United States, and its ‘pivot’, in a conflict that should be for the claimants to settle — bilaterally or as a group. Luckily, Sino–Philippine tensions did not blight the recent ASEAN Foreign Ministers’ Meeting in Bandar Seri Begawan, with the parties managing to produce a joint communiqué unlike in 2012. Still, the ITLOS filing has laid bare divisions within ASEAN over how to manage maritime quarrels with China.
First, the Notification cannot bind China because China has optionally excluded itself from compulsory arbitration under UNCLOS. This includes ‘disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction …’ (UNCLOS Article 298) that relate to fisheries or marine scientific research in the exclusive economic zone (EEZ) or on the continental shelf of the littoral state.
China administers half-a-dozen land/geological features in the Spratlys. Given sovereignty over these features and their legal status as either rocks or islands is in dispute — and UNCLOS is not competent to advise on land sovereignty determinations — Beijing is within its rights to claim they generate full or partial maritime zones. In the interim, it can treat waters adjacent to the land features it administers in the Spratlys — regardless of its proximity to the Philippine archipelagic baseline — as its EEZ. China is also entitled to enforce domestic maritime law over marine scientific research activities, including drilling on the continental shelf (UNCLOS Article 246), in these adjacent waters. Given this context, the ITLOS arbitral panel will almost-certainly refuse to issue a decision and even probably an advisory opinion.
Second, despite what the Philippines argues, all good faith avenues to peaceful dispute resolution, including provisional arrangements of a practical nature (UNCLOS Articles 74 and 83), have not been exhausted.
In March 2005, the Arroyo administration in the Philippines and China and Vietnam agreed to jointly explore potential energy resources in the South China Sea. In 2008, the Philippines, not China, rescinded the agreement and has since proceeded to unilaterally issue exploration licenses to a disputed section of the joint study area. The Philippines rescinded the tripartite agreement because the exploration zone intruded into undisputed Philippine waters, but that should not be a reason to shy away from joint development. For example, one of the very first joint development zones was established by Saudi Arabia and Bahrain in the Persian Gulf in the 1950s and lies wholly within the territory of Saudi Arabia. Bahrain receives a net revenue share.
Finally, China’s nine-dash line has no international legal personality and hence cannot be consistent with or contrary to the letter of UNCLOS.
China has been deliberately vague about its claims in the South China Sea. It has not announced baselines as part of its territorial sea adjacent to any of the Spratly land features in any maritime territorial declarations or laws. In May 2009 it issued Notes objecting to a joint submission by Malaysia and Vietnam and appended a map of the nine-dash line, but China only claimed ‘relevant waters’ within the line. It did not specify coordinates or whether the waters claimed related to EEZs, the continental shelf or both. Until China makes clear what baselines it claims, or furnishes an outer continental shelf claim to the UN Commission on the Limits of the Continental Shelf (China has partially done this in the East China Sea), China’s claim to entitlements in the South China Sea will remain legally indeterminate.
China is not alone in being oblique. The Philippines is also yet to submit an outer continental shelf claim in the South China Sea to the UN Commission. And it too has not ruled out the right to exercise jurisdiction over full or partial maritime zones generated from the features it administers in the Spratlys.
Rather than lodge overly-enterprising legal claims, the Philippines should negotiate practical and cooperative arrangements for the joint exploitation of common resources in the South China Sea. China, meanwhile, must move away from its constructionist interpretation of selective UNCLOS provisions and accept the commercial and economic purposes of modern oceanic law. Submitting an outer continental shelf claim that implicitly separates the sharing of sovereign rights from sovereignty disputes over land/geological formations in the South China Sea — and limiting law enforcement activities to the hypothetical median line in the interim — would be an excellent place to start.
Sourabh Gupta is a Senior Research Associate at Samuels International Associates, Inc., Washington DC.
Are you advising China now to claim all Indian ocean, 1/2 of Atlantic and 2/3rd of the bay of Mexico as their ancient history based sovereign territorial lands/waters, then negotiates shared marine exploration benefits with neighboring nations?
Stop accusing the Philippines of picking and choosing UNLOS provisions while you are doing the same. Your intentional misinterpretation of modern oceanic law really mounts to submitting to law of the jungles.
Send a copy of this paper to the CCP propaganda dept. and they will issue you a $.50 check to further more faked researches like this.
I have a different view than the author of this article and here is my understanding of the current situation (I’d like to precise that I am not a lawyer):
1) Proposals of joint developments at 60/40 (60% for the Philippines) were clearly turned down by China, as this would imply the area belongs to the Philippines. There is no hope that China would unilaterally give up the claim on the sea, and at best the Philippines could reach to share a part of the economic revenue at the expense of giving full control to China to waters well within its EEZ.
2) China’s bilateral bargaining power is so strong that the balance of power clearly lies in its favor. An arbitration tribunal will help to level the difference, giving both parties the same weight.
3) Both parties are UNCLOS signatories and hence agreed to follow UNCLOS rules and procedures. The rules are clear and it is actually the responsibility of the tribunal (and NOT China’s unilateral decision) to satisfy itself that it has jurisdiction over the dispute and that the claim is well founded in fact and law. Otherwise any party could self-exempt itself and UNCLOS would be useless.
4) Should the tribunal rule that it has jurisdiction then the proceeding would continue and a ruling would be binding. Should the tribunal decide that it has no jurisdiction, then the matter would proceed to the conciliation commission instead. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.
5) The Philippines notification, was carefully worded as to address the legal aspects of China’s 2009’s Article 298 declaration to the UN. Additionally, the islets are way too tiny to be settled permanently (they contain less than 4 square kilometers of land area spread over more than 425,000 square kilometers of sea. ), and most likely they have always been used as a fishing base with temporary shelters. If a piece of earth cannot sustain life and an economy over a long period of time, then that location is not considered an island and does not generate a full EEZ.
6) The Philippines shows that it abides to the international rule of law, while the non participation of China shows its defiance towards the international dispute settlement mechanisms it agreed to follow in 1996.
Under this light, in my own opinion, the Philippines has much more to benefit than to lose by choosing to make use of its right to file a claim to ITLOS.
It is indeed true that the Philippines’ case has many points that the Tribunal is unlikely to have the jurisdiction to uphold, as I have pointed out in another article on East Asia Forum,
http://www.eastasiaforum.org/2013/05/18/the-philippines-prospects-at-the-un-tribunal/
However, some of the Philippines’s points are strong, eg, the one that Scarbrough Reef is a rock under UNCLOS 121(3) and cannot generate EEZ.
If the Tribunal accepts that Scarbrough Reef cannot generate EEZ (which is is likely to) then Sourabh Gupta’s argument below will fall apart for the area around that Reef and beyond its territorial sea:
“First, the Notification cannot bind China because China has optionally excluded itself from compulsory arbitration under UNCLOS. This includes ‘disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction …’ (UNCLOS Article 298) that relate to fisheries or marine scientific research in the exclusive economic zone (EEZ) or on the continental shelf of the littoral state.”
The proposal I made in my article is that the Philippines should drop the points it is unlikely to win, and focus on the points that it can win.
This is in reply to your article. The Philippines are claiming both islets and surrounding waters based upon the UNCLOS 200 miles EEZ from base lines of country island which is Philippines.We both know that after World War II this policies and regulations regarding settlement of boundaries from any countries were initiated to avoid wars and settle borders disputes. It is not solely pointed to islets but the areas surrounding those islets in order for the Philippines to develop, explore and drill what ever it can get from the sea bed plus the economic exploitation such as fish and the likes.It is really disappointing that China is so stubborn not to comply or participate the Arbitration initiated by the Philippines and not only that, it is also a fact that China is not complying the International Law to settle border disputes by legal means. China should respect International Laws.It is resorting to its belief that because China is next to United States power militarily then no one can trample her because of that. It is resorting to that belief like the comment of one U.S. general,” I own what is ours and also yours!”That mentality is no longer applied to this century. Though I read some articles and opinions were favorable to China, more of those are in favor to ICJ Arbitration. The reasons we see as the logical and legal settlement by United Nation to both countries to finally settle border disputes and claims to avoid wars.This also are the means and policies by the United Nation to prevent rogue/abusive country annexing other territory that does not legally belongs to them. Just think of the unthinkable if India or Russia would prohibit any ships to navigate and cruise Indian Ocean and The Arctic Ocean with that foolish belief that these oceans owned by them!!
Let me address this last posting first, given that it goes to the nub of the issue.
Article 121, para 3 of UNCLOS leaves entirely unclear how the sub-category of island, i.e. ‘rock’, is to be identified. There is no plain LEGAL interpretation of the terms “sustain human habitation’ or “economic life of its own,” and authoritative interpretation of Article 121 from an international adjudicatory body, such as the ICJ (let alone more circumscribed venues such as ITLOS), is entirely lacking. Courts, hence, have tended to side-step this issue.
Given this basic background, it would be an extraordinary overreach by the ITLOS Tribunal to arrogate itself the right to determine what sort of high-tide elevation the Scarborough land features actually are, i.e. rock or island (as a precursor to determining whether the Shoal can generate an EEZ or not). And especially so in a case where one of teh parties has exercised its Article 298 1(b) opt-out.
Simply stated, I do not share your optimism that the tribunal will find that the Scarboroughs cannot generate an EEZ and therefore that China cannot exercise jurisdictional rights in these waters.
Patrick – Many of your points would hold if China had consensually surrendered authority to ITLOS to arbitrate this jurisdicational issue (or, alternatively, had independently submitted a continental shelf claim to which the CLCS could then have made recommendations). Doesn’t mean that ITLOS cannot hear the Philippines’ Notification … only means that that ITLOS will find that it is not competent to adjudicate this case. And just because Manila says that its notification is carefully worded and does not impinge on Article 298 (and commentary in the English language media blindly repeats this) does not mean it is so. Manila has tried to be a bit too smart in filing this case and should have done its due diligence better. Taking such a highly-charged dispute to an international tribunal and then coming off second-best is not strategically wise.
There are also serious issues attached to whether any of the Spratlys (not discussing the Scarboroughs here) should even have any Philippine presence … its sovereignty claim to the Spratlys that it does administers is weak in the EXTREME — but this a separate issue from that which ITLOS is currently tasked with considering, and I’ll discuss it up at some other point of time.
Sourabh
Huy Duong and Sourabh Gupta thanks for your replies.
My current understanding is that in the Philippines Notification and Statement of Claims, we can see the following points:
1) China’s nine-dashed line is invalid;
2) China occupied mere rocks rather than significant features;
3) China’s structures on submerged features are illegal;
4) and Chinese harassment of Philippine nationals at sea is also illegal.
After reading different articles, I understand that there are some diverging opinions on the chance of success of the claims. Not being a lawyer, I can hardly judge on the chance of success, but I would like to still contribute with some other points instead.
Wouldn’t this case be a chance to clarify some legal aspects that are not related to sovereignty?
For example:
a) China nine-dashed line explanation is very vague and hard to understand even from an historic perspective. Is the line conform to UNCLOS?
b) Is it a rock or not? If yes, then even if China does have sovereignty over a tiny feature, the rock would be legally incapable of generating resource zones (exclusive economic zones or continental shelves). China would at most get 12 nautical miles, while the outside would be in the Philippines EEZ.
c) If the nine-dashed line is invalid, is for example the Reed Bank legally part of the Philippine continental shelf? If yes, then Philippine companies will be legally free to pursue the development of hydrocarbon deposits around Palawan.
If the nine-dash line is invalid and if some locations are defined as rocks and not islands, wouldn’t that be a step forward in understanding who has which economic zone?
Of course, if the tribunal has no jurisdiction on deciding on the nine-dash line and also cannot say whether a location is a rock or an island, then the whole thing is pointless.
Then again, what is the usefulness of the arbitration tribunal if it cannot decide about anything? Any nation could simply circumvent the UNCLOS by claiming sovereignty to a whole area with rocks and islands and then automatically no decision on EEZ can be made. At some point, international mechanisms should prove effective at least in legally clarifying aspects or their existence and purpose could very much be questioned.
As stated in my article: “Up until now, the international courts have avoided making potentially controversial interpretations of Article 121(3)”.
However, the point is the courts only avoid making potentially controversial interpretations of Article 121(3) when it is not necessary to make such interpretations. I think Sourabh Gupta may be wrong to assume that the Tribunal will avoid this issue for Scarborough Reef.
In the Nicaragua vs Colombia case, the ICJ ruled that “Since Quitasueño is a rock
incapable of sustaining human habitation or an economic life of its own and thus falls within the rule stated in Article 121, paragraph 3, of UNCLOS, it is not entitled to a continental shelf or exclusive economic zone.” (http://www.icj-cij.org/docket/files/124/17180.pdf)
An examination of the literature and photographs will show that Scarborough Reef (http://www.passion-radio.org/images-blog/scarborough-reef-bs7h.jpg) conists of a few rocks above water similar to Quitasueño (http://diarioadn.co/especiales/galerias/cayo-quitasueper centC3per centB1o-un-paraper centC3per centADso-perdido-de-colombia-7.73829), which the ICJ declared to be a rock under UNCLOS 121(3).
In fact, if it is considered too controversial to say that Scarborough Reef is a rock under UNCLOS 121(3) then there is little point in having UNCLOS 121(3) at all.
I find it surprising that Sourabh Gupta would like to dismiss the whole of the Philippines’ arbitration case as a bad idea. I think it would be fairer to say that some of the Philippines’ points are ill-conceived, but some of the points are a worthy attempt to resolve differences in a legal, fair and impartial way.
I find it surprising that Sourabh Gupta reserves his criticisms for all of the Philippines’ points, and none for China, which rejects the legal process.
If all of the Philippines’ points are without merit, China should take part in the legal process and let the Tribunal dismiss them, and Sourabh Gupta should encourage China to do so.
Huy Duong
Thanks for your reply and opinion, which I can definitely share.
Patrick
I would first invite Mr. Gupta to take a more careful reading of both the Philippines’ Statement of Claim and the UNCLOS. The Philippines did not bring the dispute before the ITLOS, but instead to the Arbitral Tribunal under Annex VII of the UNCLOS. I understand that this has more of procedural law implications and hardly affects the issues being discussed here, but I do feel that at the least, it shows some proper research and respect to the parties.
Second, I find it surprising that Mr. Gupta takes Article 298 UNCLOS to have such a sweeping effect as to exclude all legal issues in the South China Sea disputes from the jurisdiction of dispute settlement body. The drafting history of the UNCLOS and the wording of Article 298 itself I believe suggest a narrow reading of the article. Thus, it cannot be taken to exclude issues that were not intended to by the drafters which include, at the least, an interpretation and application of Article 121, which is exactly what the Philippines is asking in one of its claims.
Amy
Commentator is correct on point one. Dispute is NOT being heard at ITLOS but under ad hoc procedures at the Permanent Court of Arbitration in the Hague. As commentator points out, implications are purely procedural. I would add though that PCA cases, compared to ITLOS cases, operate along a slower track. If Manila wanted an expeditious decision, it should have gone to ITLOS.
On the second point, commentator, like a previous Vietnamese commentator, is holding out hope that that the tribunal will freelance an interpretation of Article 121 (rock or island) with regard to the Scarboroughs (which legally – and ambiguously – is a ‘high-tide elevation’), will find it to be a ‘rock’, thereafter deny that China can claim any expansive maritime zone emanating from the Scrboroughs, and thereby find Chinese law enforcement activities related to fishing, MSR in waters beyond the Scarborough ‘rock’ as being illegal and an infringement of manila’s rights. This is taking too optimistic a view …no international tribunal has been audacious enough to interpret what constitutes a ‘rock’ and an ‘island’ (and thereby parse a fundamental ambiguity that UNCLOS drafters heaped on subsequent maritime law practitioners). Chances that they would do so in this instance are low. Because if it did, it would also open the court to case upon case upon case by coutries challenging each other about the legal status of this ‘rock’ and that ‘island’. UNCLOS did not mean to do that in the first place.
Article 298 does not necessarily have to have a broad sweep. But it does sweep issues, among others, that pertain to law enforcment activities related to fisheries and MSR.
Sourabh
I don’t pretend to be an expert in the legalese, but simply from a common sense and moralistic standpoint, it seems rather odd that the Philippine claim, based entirely on the 200-mile EEZ out from Palawan in waters long frequented by Filipino fishermen, can be labeled “weak in the EXTREME”.
If anything, for one country to raise a dubious and ridiculously expansive pseudohistorical claim to ninety percent of a international body of water traversed by people from many different cultures for over a thousand years, is what strikes me as weak in the extreme.
One also wonders why, if China’s claim is as good as they say it is, they consistently refuse to take the matter to legal arbitration, and instead, persist with the tired canard of “bilateral negotiations”, which is a euphemism for China using its superior strength to intimidate the smaller party.
The “weak in the EXTREME” is in reference to the claim to title (i.e. to sovereignty) to the various islands and land features in the South China Sea. It is NOT in reference to the inalienable sovereign rights and jurisdiction enjoyed by Filipino fishermen enjoyed in its 200 nm EEZ out from Palawan … and in fact even beyond in these semi-enclosed waters of the South China Sea.
Sourabh
Mr. Gupta admitted that its was Manila ‘s decision for a legal resolution has “predictably angered the Chinese”. So, the Chinese has the right of cherry picker when it has taken the US and E.C to numerous international tribunal bodies over trade disputes but Beijing does not want to take part in ITLOS. Maybe be China will set a new double standard for the rest of the world
Mr. Gupta, Brunei 2013 conference managed to issue a final joint communique is not in any way by luck as you claim. Rather, Brunei the host country, unlike 2012’s Host, is not in China pocket and China cannot buy its way out again. Furthermore, Brunei is one of the parties that involved in the dispute. it has a very big stake to let the issue falling between the crack