As observed by one practitioner of both fields, ‘it is impossible to make substantive decisions within the law which would involve no political choice.’ The award’s content is a result of choice by the judges between paths with varying political implications, and these outcomes guide individual states’ support for the ruling.
This is not to suggest that the judges had political motives or that their decisions are bad law. But if we enlist international law to solve political problems, we must recognise that legal rules are not politically neutral — they distribute scarce resources among sovereign states, whether material endowments or political power. The chequered international response to the award suggests that states are mainly concerned with its implications for their interests, and not with observing international law for its inherent legitimacy.
This is critical to the award’s impact, as whether China eventually complies will likely turn on Beijing’s assessment of whether other states expect this and will exert pressure to achieve it. Only the United States, Australia and Japan have expressly stated that the award is binding. Such language was absent from India, South Korea, all 10 ASEAN states, the European Union and the office of the UN Secretary General.
Given that all these actors express support for international law to resolve the South China Sea disputes, their caution likely stems at least in part from the Tribunal’s expansive approach to certain issues, which went beyond what most legal experts anticipated.
I have argued that the unequivocal dismissal of ‘historic rights’ has decreased the chance of Beijing trimming its claims to align with the United Nations Convention on the Law of the Sea (UNCLOS). But this may also explain other states’ reticence to endorse the award’s conclusions, notwithstanding that they only bind the parties to the arbitration. Notably Vietnam, which like China maintains an expansive claim based on its own account of the historical record, has yet to deliver its promised statement on the award’s content.
Reluctance to endorse third-party adjudication on the merits of a unilateral historical account may apply not only to maritime sovereign claims but also terrestrial ones, for example those of India. It is precisely in such cases that states are likely to reject definitive judgments by an international tribunal. States are more likely to accept such decisions where the dispute turns on different readings of mutually accepted events, as with the disputes between Indonesia and Malaysia and Thailand and Cambodia.
The Tribunal also went beyond UNCLOS’ text in its approach to distinguishing features as ‘islands’ or ‘rocks’, looking to evidence of long-term permanent settlement when deciding a feature’s capacity to ‘sustain human habitation or economic life’. This resulted in Taiwan-occupied Itu Aba being declared a rock, when it could just as well have been found an island under the rules of treaty interpretation.
The Tribunal had discretion on this issue, as Itu Aba was not among the features on which the Philippines requested an opinion (although it was mentioned in Manila’s oral arguments). It chose both to rule on Itu Aba’s status and to interpret UNCLOS Article 121 in a way that not only lacks clear support in state practice, but which caused maximum aggravation to Beijing and Taipei.
As one commentator put it, the Tribunal’s reasoning does not reveal the Platonic form of an ‘island’: it fixes a more or less arbitrary standard, which might have been decided differently by a different panel. In this context, it is understandable why Beijing and Taipei view the Tribunal as having gone out of its way to discredit their claims.
The Tribunal justified its approach as reflecting the intended balance in UNCLOS between sovereign rights generated by small features and those enjoyed by large coastal populations. But given that it asserted jurisdiction on the basis that sovereign rights were not at issue, this could be criticised as inconsistent reasoning, as anticipated by one legal scholar prior to the award’s release.
These are not academic distinctions when played out on the international stage. They have political ramifications, which may work against dispute resolution. This has been most evident in the response of Taiwan, which before the award’s release was being held up as a model of cooperation for its approach to the Diaoyu–Senkaku dispute. Last week Taipei flew a minister onto Itu Aba to defy the award, including its reference to the ‘Taiwan Authority of China’, which while legally defensible was politically tone-deaf and guaranteed to provoke a combative response.
Nor is the award likely to help prospects of other states submitting to adjudication their claims to features that, based on the Tribunal’s reasoning, would likely be declared rocks with minimal entitlements. Japan for instance was quick to state that the award does not set a precedent for what constitutes a ‘rock’, specifically regarding Okinotorishima.
States are always wary of consenting to dispute resolution by international tribunals for fear of expansive jurisdictional assertions and ambitious reasoning; hence UNCLOS allows exemptions from such processes. The Tribunal’s decision that China could not avail itself of such an exemption was already ambitious. Given the forward-leaning nature of the ruling that followed, other states may conclude that their best option in China’s situation would be to follow Beijing’s example in stonewalling arbitration, as Russia has already done.
We should hope that the award becomes a path towards dispute resolution in the South China Sea, and not an example of the ‘false promise’ of international institutions. Apart from the prospect of a disastrous armed conflict, and uncertainty over the food security of hundreds of millions, at stake is the integrity of the UNCLOS dispute resolution regime. But state reactions to the award raise questions as to whether that regime was really designed to deal with such a political minefield.
John Lee is a former Visiting Fellow at the Mercator Institute for China Studies.
Your research about SE Asian countries such as Malaysia is excellent.
I disagree with this premise of this article this seem to me more about appeasement then understanding the theme in which the SCS discourse is inherently about the ambivalence of China towards the arbitration process and ruling strengthens the perception of appeasement and challenges the very notion of mutual reciprocity in which ordinary people can relate to and politicians can genuinely exploit, this is what make the discourse of those opposing China’s claims more potent then China’s historical rights.
“History does not set the precedent for the present”, this is a basic elementary truth it may play an influencing role but at the end of the day people make practical choices and in many cases against their very own interests as China’s has so aptly demonstrated with its claims in the SCS.
Another piece of thoughtful dissection of the procedural and substantive flaws in the so-called arbitration. I wonder who the two scholars referred to are, one of the fame of the “platonic form”, the other of the fame of anticipating an inconsistency in that Yanai Inquiry’s report’s reasoning, and I want to read them further.
The high-mindedness and legal rigor displayed in this article is on a par with that in Joseph A Klein’s article: South China Sea: UN Convention Arbitration Tribunal Sinks Rule of Law.
Thanks for excellent critique and for speaking out against unbound Yanai Inquiry.
No doubt an interesting article.
1 The disputes in the South China Sea will never be solved by lawfare or an ad hoc 5-member tribunal constituted under Annex VII of Unclos because it has absolutely no power to adjudicate any dispute over sovereignty in the Spratly Islands. Even the expansive 12 July ruling has left the question of sovereignty unresolved.
To fully understand the disputes the four Asean nations have with China in the Spratly one needs to revisit the stage of History involving voracious colonial actors like France, Britain, Spain, Japan and the United States.
This is the Timeline of History:
a) After a war, in the 1887 Sino-Franco Convention, France, which had colonized CochinChina and was a protectorate of Annam and Tonkin (all three became today’s Vietnam) agreed that all the isles, east of the Treaty delimitation line, were assigned to China. That included the Spratly, Paracel Islands and others.
b) The 1898 Treaty of Paris, signed when Spain handed the Philippines as a colony to the United States, Article III described the western limit of the Philippines as 118 degrees East longitude. China’s Territories such as the Spratly and Paracel Islands and Scarborough Shoal are all located west of that.
c) As early as 1933 the Philippines (then a US colony) had wanted to annex the Spratly Islands but on 20 August that year, the US Secretary of State, Cordell Hull wrote that, “the islands of the Philippine group which the United States acquired from Spain by the treaty of 1898, were only those within the limits described in Article III”, and “It may be observed that no mention has been found of Spain having exercised sovereignty over, or having laid claim to, any of these (Spratly) islands”.
d) Japan invaded and colonized Manchuria in 1931, invaded China in 1937. France invaded and occupied China’s Spratly and Paracel Islands in 1938 and in 1939 Japan threw out the French and colonized these two island groups and placed them under Formosa, which was already ceded to Japan in perpetuity under the one-sided Shimonosecki Treaty of 1895. Japan had a submarine base in Itu Aba (Taiping Island) which was then not a rock but is today according to a 5-member ad hoc tribunal in the Hague.
http://english.cri.cn/12394/2016/06/03/3441s929762.htm
e) After two atomic bombs dropped into Japan in 1945, Japan declared unconditional surrender. Formosa (Taiwan), the Pescadores, as well as the Spratly & Paracel Islands were returned to the Republic of China on 28 April 1952, under Article 2 of the Treaty of Peace that Japan signed, in accordance with the Potsdam Declaration, by extension to China under the one-China policy, recognized by all 10 Asean nations, the US, Australia and Japan.
f) One hundred years of British records have shown there is no dispute regarding the Spratly Islands and that China is the sole titleholder and the British have made no claims on these islands after WW2. Neither did Spain, France, the US or Japan.
g) In Sept 1958 China made a 12 nm territorial sea declaration on all her territories and that included the Spratlys. Brunei, a British protectorate and Malaysia, which had her independence from the British on 31 August 1957 plus the Philippines, which had her independence from the US in 1946, did not object.
h) North Vietnam’s Prime Minister, Pham Van Dong agreed with China and wrote a letter to Premier Zhou Enlai to acknowledge the 12nm declaration on 14 Sept 1958.
i) When ECAFE announced the discovery of oil in the SCS in the late 1960s, Vietnam grabbed 29 features in the Spratlys, Malaysia 6, Brunei one. In 1978, not to be left out, President Marcos annexed 8 features, using presidential decree 1596, which also created the Kalayaan Island Group (KIG), the boundary of which effectively covered the Spratly Islands.
j) The arbitration initiated by the Philippines in Feb 2013 was a political gambit to undermine Itu Aba and advance the Philippines’ 200nm EEZ into the Spratlys. It too, like the KIG gambit, will fail.
Unclos came into force in 1994. It is the law of the sea and not of the land. Unclos has no power to change History or the sovereignty of a territory.j) The arbitration initiated by the Philippines in Feb 2013 was a political gambit to undermine Itu Aba and advance the Philippines’ 200nm into the Spratlys. It too. like the KIG gambit, will fail. Unclos came into force in 1994.
k) Despite these illegal annexations by the fours Asean nations, China acted with restraint. She proposed to shelf the disputes and suggested joint developments of the living and non living resources in the Spratlys. Agreements were signed with the Philippines and Vietnam to explore for oil but they were abrogated by the latter two.
l) Today Vietnam is the number three oil producer in the SCS behind Malaysia and Brunei. The Philippines is eying the oil potential in the Reed Bank. China has yet to produce a single drop of oil in the SCS.
2 “Such language was absent from India, South Korea, all ten ASEAN states, the European Union and the office of the UN Secretary General.”
Looks like they know something which the US, Japan and Australia don’t or don’t want to.
Thanks for your history lesson, Do you have a book on these historical developments?
Now the fight has to be roughly two-pronged-by sheer show of force and determination to deter and counter any attempts to coerce China into submission to the so-called ruling and secondly by dissecting and dismantling the legitimacy of the so-called ruling. The former strategy is dependent on the will of the Chinese people, the will and blueprint of their government, and the resilience of their country’s economic, military and technological strength, the latter dependent on political and legal diplomacy and discourse.
Regarding the diplomacy and discourse, do you not advise a spade be called a spade, i.e. the so-called ruling be referred to as the Phillipines Yanai Inquiry report, one-sided and a conclusion of one’s, the Phillipines’ , own task force’s 3-year investigation. It is undeniable the way the five-member were selected, the non-neutrality of these five wise men, the source of the remuneration of the same, the rules of construction these men adopted all pointed to their allegiance and geniality. In a word, they were not people who fit the bill posited in UNCLOS dispute settlement provisions, The arbitrators required under those provisions must satisfy the minimal and essential objective and neutral credentials stipulated therein, departure from which calls for appropriate re-characterisation of the people chosen by ITLOS then chairman to fill the task force-hence let’s address these people as the five wise men of the Phillipine Yanai Inquiry, a la the Chilcot Inquiry. At least the British were well-advised and honest in having launched that inquiry so that precious lessons in domestic policy -making can be learned, Just like the Chilcot Report does not affect how the I raqi people looks at the the Iraq war, the Yanai report does not have effect on how China looks at the dispute. The talk of the so-called ruling being final and binding on China therefore is really loose talk.
I agree the two sides should return to negotiations to resolve the disputes constructively, taking historical facts as guidance. But that won’t happen if the nature of the so-called ruling is not properly dissected and exposed first. John Lee and Joseph A Klein should be revered for their intellectual prowess and integrity. We hope more work along this line will be disseminated to reach and persuade those people, politicians ideologically hostile to China in particular, who have been religiously insisting on the Yanai report being final and binding simply because of its pedigree of being born of a PCA ad hoc tribunal. Dig deeper and piercing the veil to see its true colour!
1 Thank you. The unwritten rule is that the victors write the history books. But the history in Asia is so murky that the colonial victors are ashamed to write such books or if they do it is always a one-side view of events seen through the prisms made in the West.
The losers like Japan keep changing and reinventing history and according to George Santayana “Those who do not remember the past are condemned to repeat it.”
Here is a link that tries to keep all the events in one website and is updated. Hope it helps and hope one day someone will collate the events into a book:
http://www.skycitygallery.com/japan/diaohist.html
2 “Now the fight has to be roughly two-pronged..”
According to the Art of War, the greatest victory is achieved without firing a single shot. To solve the South China Sea disputes, war is out of the question. In the nuclear age it’s MAD or Mutual Assured Destruction.
3 “dissecting and dismantling the legitimacy of the so-called ruling” is the best option as even though the ruling was binding and final without appeal, yet in Annex VII Article 12 there is a remedy if there is a controversy in the tribunal’s ruling and there were many.
Annex VII Article 12
Interpretation or implementation of award
2) Any such controversy may be submitted to another court or tribunal under article 287 by agreement of all the parties to the dispute.
In my opinion, China and Taiwan should invoke Annex VII Article 12(2) and take the wrong ruling on Taiping Island ‘as a rock’ to the ICJ, which held in 2012 in Nicaragua v Columbia that to qualify for a 200nm EEZ, “an island must be able to sustain human habitation or economic life on its own” as stated in Article 121(3) of Unclos.
Taiping Island has plenty of fresh water, farms with locally grown produce and live-stocks, buildings, a 3,800ft runway, harbor, hospital, weather station and over 200 people and has sustained human habitation for the last 600 years.
4 According to many observers the ruling was politically-motivated. This will undermine the credibility of Unclos, the international law of the sea and is bad news for mankind.
“In comments to the press, Motofumi Asai, a former Japanese Foreign Ministry official specializing in China relations, stated after the July 12 Hague ruling, “From the result of the arbitration, people can see that it was conducted by a bunch of people who knew very little about the South China Sea issues.”
http://journal-neo.org/2016/07/21/why-china-risks-war-over-those-wet-rocks/
Mr Tan,
Could you please provide the text of Article 2 of the peace treaty between Japan and the ROC?
We have been through that slippery road before but here is Article 2 as requested:
Article 2
“It is recognised that under Article 2 of the Treaty of Peace which Japan signed at the city of San Francisco on 8 September 1951 (hereinafter referred to as the San Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratley Islands and the Paracel Islands.”
The decision that Itu Aba is not really an island was a mistake.
As you point out, this offends just about everybody who has a small semi-inhabited island, without making anybody more likely to support the main decision.
Too bad. A good decision would have moved things towards a “Rule of Law” situation.
1 “The decision that Itu Aba is not really an island was a mistake.”
I agree. In the case of Nicaragua v Colombia, the ICJ ruled in 2012 that an island was defined “by reference to whether it a “naturally formed” and whether it is above water at high tide and would generate a (12nm) territorial sea” and to qualify for a 200 nm EEZ “it would need to be able to sustain human habitation or economic life on its own” under Article 121(3) of the Convention.”
The tribunal defied the ICJ ruling and Itu Aba became a rock. The rest is easy. The nine-dash line is history and only the Philippines has the 200nm EEZ which now extends not only over Mischief Reef and Second Thomas Shoal but almost all the features in the Spratly Islands.
Instead of solving a dispute the tribunal has planted the seeds for more future squabbles.
2 “Too bad. A good decision would have moved things towards a “Rule of Law” situation.”
Unclos is an international law of the sea and to have any integrity it must apply equally throughout the world.
But the writer points out that “Japan for instance was quick to state that the award does not set a precedent for what constitutes a ‘rock’, specifically regarding Okinotorishima.”
Okinotorishima is an atoll situated 1000 nm south of Japan and the atoll cannot sustain human habitation (no fresh water) but that didn’t stop Japan from claiming a 200nm EEZ. This is now a bone of contention among Japan, Korea and China plus Taiwan, which has just lost a 200nm EEZ in Itu Aba.
The US also claims a 200nm EEZ each for Baker and Howland Islands in the Pacific, which are bird sanctuaries and which cannot sustain human habitation on their own.
Looks like what is good for the goose is not good for the gander. Unclos’ reputation is now at stake.
The root cause is population explosion and population momentum. Except Japan, where population is reducing.
These problems would not surface if population of East Asia was 220 million instead of 2200 million. It is still growing rapidly.
Family planning and population reduction will create a peaceful, gentle world.
There will be enough food, fuel, water and minerals for all east-Asians, indeed all Asians, if their fertility falls below 1.5 births/female.
Japan’s birthrate has been around 1.4 for a number of years now. It is one of the main reasons why it has been in the economic doldrums sine the bust of the early 1990’s. PM Abe’s efforts since late 2012 to overcome this stagnation have so far met with failure. He wants to revise the Constitution to allow for a more robust military and proactive foreign policy, capable of standing up to China’s efforts to expand into the East and South China Seas. But if these economic doldrums continue, largely due to its low birthrate, Japan simply won’t have the manpower and the economic resources to do this.
China’s birthrate is also below the 2.1 replacement rate. Will it, too, face similar challenges in the future if it cannot get its birthrate up higher? Talk of wanting to overcome “100 years of humiliation” is one thing. The reality of how it will apply its precious, if not dwindling, resources is another.