What the Philippines–China arbitration ruling means for the South China Sea

Author: Sourabh Gupta, Samuels International

On 29 October 2015, a United Nations Convention on the Law of the Sea (UNCLOS) Tribunal issued the highly awaited Award on Jurisdiction and Admissibility in the Philippines–China arbitration case. The interim award sets up a climactic final ruling in 2016.

In the arbitration, Manila seeks rulings on three interrelated matters. First, none of the insular features in the South China Sea — be it the Scarborough Shoal in the northern sector of the Sea or the Spratly Islands in the southern sector — are capable of generating an entitlement to an exclusive economic zone (EEZ). They are ‘rocks’ at best, which generate a territorial sea at most.

Second, as there are no overlapping entitlements in these waters, Beijing’s land reclamation activities in the southern sector of the South China Sea, and law enforcement actions across both sectors, have interfered with Manila’s sovereign rights and freedoms in its EEZ.

Finally, China’s claims based on ‘historic rights’ within the ‘nine-dash line’ have no basis in UNCLOS and under international law.

Manila presented 15 specific submissions for redress. In its ruling, the Tribunal admitted (some with reservations) 14 of them. But this should not be seen as vindicating Manila’s arguments. Despite one significant victory and a few marginal rulings in its favour, Manila is likely to come up empty-handed for the most part in the final award.

The key driver of the Philippines’ legal filing in January 2013 was a jurisprudential innovation laid down by the International Court of Justice (ICJ) in November 2012. In Nicaragua v Colombia, the ICJ found that a small maritime feature — and even an ‘island’ — situated on the ‘wrong side’ of the median line, and many nautical miles removed from any such similar feature, tended to produce a cut-off effect. This disproportionately disadvantaged the opposite state’s coastal projection-based entitlement. It ruled that such a feature must be enclaved during the course of delimitation — that is, its entitlement restricted to a 12 nautical mile sea at most.

In 2016, the Tribunal appears poised to sustain this ‘enclaving’ argument regarding the Scarborough Shoal. The shoal is an isolated feature that resides deep within the Philippines’ coastal projection but is administered by China. Although Nicaragua v Colombia was issued in the context of an overlapping maritime delimitation, the Philippines–China Tribunal observed that a dispute over claimed entitlements should not automatically be conflated with one of delimitation. The former was adjudicable in the rarer instances where an overlap in the claims is lacking. The Scarborough Shoal is more than 200 nautical miles from any claimed feature in the South China Sea. It was therefore excluded from Beijing’s Article 298 sea boundary delimitation-related opt-out and is presumably liable to enclaving.

This action will effectively place the northern sector of the Sea adjacent to the metropolitan island of Luzon, including its exploitable hydrocarbon resources, beyond the zone of entitlement generated by the shoal and firmly within Manila’s exclusive jurisdiction. But Beijing can still argue that the overlapping entitlement from its claimed Nanshan Island in the Spratlys empowers it to exercise sovereign rights and jurisdiction to exploit a share of the vast Reed Bank hydrocarbon bounty.

Nicaragua v Colombia also foreshadows the limits to Manila’s legal entrepreneurialism. In 2012, the ICJ, recalling that international law did not prescribe any minimum size that a land feature must possess in order to be considered an ‘island’, accorded this status to a feature just 0.7 metres above sea level at high tide. In 2016, the Philippines–China Tribunal will find that every Beijing-administered feature in the Spratlys group resides within a 200 nautical mile radius of a Chinese-claimed ‘island’.

This means that the Tribunal, due to the overlap, is barred from determining the entitlements of each of these features in the southern sector of the South China Sea as they fall outside its jurisdiction. Let alone agree with Manila’s contention that no feature in the Spratlys warrants an entitlement beyond that of a ‘rock’, it will be unable to find that Beijing’s land reclamation activities and law enforcement actions have violated Manila’s exclusive rights and freedoms. This southern sector will persist as a patchwork of competing jurisdictions. As for the rush of artificial island-building by China, each instance — whether on a low-tide or high-tide elevation — is blatantly legal.

Finally, the Tribunal’s findings on China’s ‘historic rights’ claims to the waters within the nine-dash line may astonish its many detractors. As long as the historical access and enjoyment practices of traditional Chinese fishermen within the perimeter of the nine-dash line was continuous, reasonable and certain and is considered a ‘local custom or tradition’, these practices are not qualified by the Convention. They are instead governed by the rules of general and customary international law. And so long as these practice-based rights are exercised non-exclusively by traditional Chinese fishermen and are not backed by the long arm of Chinese enforcement in foreign EEZs, the South China Sea littoral states are obliged to pay due regard to these Chinese-held rights within each of their exclusive maritime zones created by the Convention.

But Beijing bears a prior obligation to lay out a cognisable ‘historic rights’ based claim to the waters within the nine-dash line. It must limit the scope of its assertion to practices that have been continuous, reasonable and certain. Ironically, Manila also claims such local custom-based traditional fishing rights in the territorial sea of the Scarborough Shoal and is likely to receive a favourable hearing.

Neither Beijing nor Manila will walk away dejected in 2016. The same cannot be said of Vietnam if the Tribunal confirms the nine-dash line and the scope of China’s overlapping entitlements-based opt-outs. Hanoi should not lodge belligerent filings as an interested third party within the Tribunal’s setting. Instead, it should sit down with Beijing and sort out its mutual differences on overlapping entitlements, obligations and jurisdiction in this contested waterway.

Sourabh Gupta is a senior research associate at Samuels International Associates, Inc.

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peter christopher vertannes
17 November 2015 1:37 pm

You seem to forget that China does not recognize any tribunal and thus any ruling made on the part of a court will have no bearing on the status quo.

Sourabh Gupta
21 November 2015 6:00 am

A ruling made on the part of the court will have a bearing on international law and thereby will have a bearing on the status quo.

Jose Rizal
17 November 2015 6:03 pm

Rocks which cannot sustain human habitation or economic life of
their own shall have no exclusive economic zone or continental shelf.

Even if ITU ABA is considered an island, it’s eez will have to be adjusted against the long coastline of Palawan.

Even if Scarborough is adjudged to china, it only has a territorial sea and everything after that is the PH EEZ.

Sourabh Gupta
21 November 2015 6:10 am
Reply to  Jose Rizal

Regarding the issue of “rock” or “island,” I would defer (and I suggest you should defer too) to past international court rulings. Here’s the most recent one: “… QS 32 is above water at high tide by some 0.7 metres … The fact that QS 32 is very small does not make any difference, since international law does not prescribe any minimum size which a feature must possess in order to be considered an island. Accordingly, the Court concludes that the feature referred to as QS 32 is [an “island’ and] capable of appropriation.”

Regarding Itu Aba and Palawan, your observation is correct EXCEPT that the final adjustment will have to be arrived at via bilateral negotiations and consultations with China. Which is diametrically opposite to the course the Philippines has currently embarked on.

On Scarborough, your observation is correct, and will (most probably) be borne out in the Tribunal’s final ruling.

KTTan
17 November 2015 8:59 pm

Another great analysis by Sourabh Gupta.

IMHO, the PCA should also take into consideration (but did not in its report) that in the Peace Treaty of 28 Sept 1958, Japan already returned the Spratly (Nansha)and Paracel (Xisha) islands to the Republic of China, by extension also PRC and therefore China has *indisputable* sovereignty over these islands in the SCS.

The Philippines, on the other hand, illegally annexed some features in the Spratly islands via a Decree from President Marcos in 1978 and renamed them as the Kalayaan islands.

Sourabh Gupta, appreciate please comment on these observations:

1) In the ‘Glossary of Defined Terms” in the Tribunal’s report, the Spratly islands, as a GROUP, were named the Kelayaan islands by the Philippines. How can this be true, when they only annexed SOME features, not ALL the features in the Spratly islands?

2) If the Tribunal has no power to decide on sovereignty issues and since it ignores the said 1952 Peace Treaty, how could it legitimately make any decision on Manila’s “15 specific submissions for redress”, in particular on the 9-dash line, which Dr Sam Bateman rightly said “is a “loose geographical shorthand to say we claim islands and features, it is not actually questioning other countries who have established exclusive economic zones inside the nine dash line, or indeed have maritime boundaries with their neighbour.”

3) Since the President of ITLOS is a Japanese and Japan has territorial disputes with China, was it equitable for the Philippines to nominate him to select the 4 judges? And should he not excuse himself from doing so?

I am not questioning the integrity of the 5 judges or the President of ITLOS, just the procedural aspect of the selection of judges, since the Philippines had already rejected the ITLOS Tribunal and opt for an ad hoc PCA.

4) Even if the Tribunal makes a decision, arguably with these ‘flaws’, how can it enforce it if China ignores it? If it cannot, will the Filipino legal term go home empty handed?

Thank you.

Sourabh Gupta
21 November 2015 6:49 am
Reply to  KTTan

1) The “Glossary of Terms” language is purely for ease of reference and is without prejudice to any State’s claim or occupancy. After all, none of the littoral states administers/occupies all the Spratly islands (unlike the Paracels which are fully within China’s administrative control). Manila refers to these islands as the Kalayaan Island Group in domestic law, hence the Tribunal has reproduced it without adding or denying legitimacy to this claim.

Regarding the Nine Dash Line, the Tribunal’s inquiry is specifically into whether the Line has standing in the body of international law as a “historic rights” line … and whether such “historic rights” are consistent or compatible with the Law of the Sea Convention. The “historic rights” claimed by China within the Nine Dash Line are of a sub-sovereign nature, as such these rights do not clash with and are not excluded from the Tribunal’s jurisdiction by considerations of sovereignty.

Yes, the President of ITLOS is Japanese but the procedural rules that govern ITLOS give him the legitimate authority to make certain selections. Besides Japan is not a direct party to the case either. It may interest you to know though that there had been a Sri Lankan national on the initial Tribunal Panel but that he recused himself from the case soon thereafter because his wife was a Filipino. And he was replaced by another gentleman who did not have any formal conflict of interest. So basically all fundamental rules have been adhered to in the selection process.

You are correct that the Tribunal does not have enforcement powers. But the Tribunal’s ruling will become part of the body of international law after it is released. Hence to this extent, actions on the ground that are deemed not to correspond with the ruling will place that Party in a poor light among its peers. From a legitimacy point of view, it would be best that the Tribunal’s Ruling is adhered to – and this obligation rests on BOTH parties’ shoulders.

At the end of the day, my impression is that the ruling will be far more damaging to Manila’s (and Hanoi’s) interests than Beijing.

Hope this helps. Best, Sourabh

KTTan
23 November 2015 1:04 pm
Reply to  Sourabh Gupta

Thanks Sourabh for your comments:

1 “Manila refers to these islands as the Kalayaan Island Group in domestic law.
But my point is that the ‘Kalayaan Island Group’ describes ONLY some features annexed by President Marcos in 1978. The Philippines does not claim the whole of the Spratly islands. China does by virtue of the Treaty of Peace of 28 April 1952, when Japan returned the Spratly and Paracel islands to the ROC, by extension, China in the one-China policy,which Pres Nixon agreed in Feb 1971 but ominously, this 1952 Treaty of Pace is ignored by the Tribunal.

By dishonestly naming the whole of the Spratly islands as the Kalayaan Islands, the Philippine is using the ‘Salami slicing’ charade, hoping that no one notices that its long term ambition is to annex the whole Spratly islands.

2 “The “historic rights” claimed by China within the Nine Dash Line are of a sub-sovereign nature, as such these rights do not clash with and are not excluded from the Tribunal’s jurisdiction by considerations of sovereignty.”

But the Tribunal has no power to decide on sovereignty issues. According to Sam Batement the “The U-shaped line is a loose geographical shorthand to say we claim islands and features, it is not actually questioning other countries who have established exclusive economic zones inside the nine dash line, or indeed have maritime boundaries with their neighbours.”

3 If Mr Pinto, whose dear wife is a Filipina and he had graciously declined to act as the Chairman of the Tribunal, one would think that the President of ITLOS should do the same as Japan has a very serious territorial dispute with China and the Tribunal’s decisions may affect future outcome in the Daioyu/Senkaku disputes.

4 “But the Tribunal’s ruling will become part of the body of international law after it is released.”

How good is that when even Uncle Sam does not recognize it and has not bothered to ratify it? The danger is that if the Tribunal ignores the Treaty of Peace of 1952 in which the Spratly and Paracel islands were already returned to China and that the recalcitrant are really those who grabbed China’s territories, China may also be enticed to walk away from Unclos, abrogates it and join the US to ignore the provisions of Unclos.

5 “At the end of the day, my impression is that the ruling will be far more damaging to Manila’s (and Hanoi’s) interests than Beijing.”

I agree with you. Since the Tribunal has no power to decide on sovereignty issues and in item 8 of the Introduction it says “the Philippines has stated at all stages of this arbitration that it is not asking this Tribunal to rule on the territorial sovereignty aspect of its disputes with China” then what comes out of the Tribunal’s ruling is at best only “an enigma, wrapped round a riddle, in a maze of conundrums.”

China has consistently reiterated its readiness to solve the disputes in the SCS in a peaceful way at the EAS only yesterday, at the Apec summit on 19 Nov and in Singapore on 7 Nov.

If the Philippines is intransigent and does not agree to a bilateral negotiation, which she agreed in the past, she will end up being the poorest country in Asia, as Chinese investments will not dare to venture there to build factories, hospitals, schools, highways, high speed trains, power stations, ports and mega Malls and hotels to generate millions of jobs.

Instead, the Filipino legal team could go home empty handed after spending tens of millions to take China to the PCA, when the real recalcitrant was the deposed President Ferdinand Marcos.

Shaun Narine
3 January 2016 7:04 am

If possible, could you please clarify your point about the earlier ICJ case recognizing an island which is only 0.7 m above sea level? As I understand Art 121 of UNCLOS, it does not mention the size of an island being a relevant factor, only that islands need to be above water at high tide and naturally formed. But it does say that “rocks which cannot sustain human habitation or economic life of their own shall have no EEZ or continental shelf”. Is the argument here that UNCLOS does not define what an island or a rock is, therefore China can claim that the features it occupies in the SCS can be islands even if they don’t sustain human life or economic life on their own? If so, then does the word “rock” have any meaning in UNCLOS? Thanks.

Sourabh Gupta
5 January 2016 9:12 pm
Reply to  Shaun Narine

Shaun – UNCLOS defines what an ‘island’ is. And you have provided the correct definition.

UNCLOS, unfortunately, does not define what a ‘rock’ is. Worse, courts have bailed out on this determination in previous cases (Romania v Ukraine; Nicaragua v Colombia)when that ‘rock'(or not) has been located within the maritime zone generated by a land feature that is unambiguously an ‘island’. In the current case, the tribunal will not even go that far, i.e. shy away from making a determination. Every China-occupied land feature resides within 200 nm of Itu Aba, and every China-claimed land feature resides within a 200 nm radius of a (Itu Aba, Vietnamese or Philippines-administered) ‘island’. So let alone make a determination of which Chinese-occupied features are ‘rocks’, the tribunal will not even find jurisdiction to get to the point to be able to make a determination.

Regarding your original question, a ‘rock’ is best thought of as an ‘island’ which does not generate anything more than a territorial sea (after all, a ‘rock’ is part of the ‘regime of islands’ in LOS). So a 0.7m land formation is an ‘island’ that could generate a full suite of maritime entitlements. Or it can be an ‘island’ that generates only a territorial sea (i.e. it becomes a ‘rock’). Maybe someday down the line a court will provide illumination on distinction. But it will not be the tribunal that is currently constituted and hearing the case.

Hope this clarifies. And I take your point that my presentation of the ‘island/rock’ dichotomy in the piece might have been a bit confusing and should have been clearer.

Sourabh

Sourabh Gupta
6 January 2016 11:02 am
Reply to  Sourabh Gupta

just to add two clarifications.

First, my discussion pertains to the features in the Southern Sector of the South China Sea only, i.e. to the Spratlys.

Second, international courts have limited above-high tide land features in the past to a 12 nm limit. But they have not done so by determining them to be a ‘rock’. Rather, they have found other legal avenues to limit their entitlement to a territorial sea.

Carrie
12 July 2016 6:49 am

If we can reverse historic habitation and right, there comes an era that people starts claiming lands for their own by rejecting long established order. We can have hundreds and thousands of reasons in our claims too. Besides, why is US army involved? They want to claim the area too? Very scary, luckily, I am not living in any of these dispute territories.