Category Archives: International Law

Anatomization of the South China Sea Dispute

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This Blog Post shall shed clarity on the contentious award passed by the Permanent Court of Arbitration. It tries to unearth certain conflict of views in dispute, as it also discusses the shortcomings of the award & China’s claims in the dispute.  

Facts, Issue & Ratio

In 2013, the Philippines filed a case in the Permanent Court of Arbitration in The Hague, asserting its rights to exploit the 200-nautical mile Exclusive Economic Zone that extends from the archipelago into the South China Sea. The Philippines brought 15 claims under the United Nations Convention on the Law of the Sea (UNCLOS), to which both states are parties. China claimed that the Tribunal had no jurisdiction, and boycotted the proceedings. After almost three years of proceedings, the five-member tribunal issued its award on jurisdiction on Oct 29 last year. A hearing on the merits of the case was held late last November. The award issued on July 12, 2016 largely upheld Philippines claims.

The dispute is over territory and sovereignty over ocean areas, which involves having claim over two island chains namely Paracels and Spratlys. These island chains are beneficial not just in terms of Mineral wealth and fishing but also gives either nations a firm position in the south-china sea in turn affecting trade & commerce.

The tribunal stated that the root of the disputes at issue between the Philippines and China lies in fundamentally different understandings of their respective rights under UNCLOS in the waters in the South China Sea, and not in any intention by one of the parties to infringe the rights of the other.

The tribunal finally ruled that –

  • China cannot lawfully claim historic rights to resources within the nine-dash line.
  • China (and others) cannot claim an EEZ from land features above high tide in the Spratlys, which were all judged to be “rocks” entitled only to a 12 nautical mile (nm) territorial sea.
  • Mischief Reef was determined to be a low-tide elevation on the Philippines’ continental shelf. China has violated the sovereign rights of the Philippines in its exclusive economic zone (EEZ) by interfering with Philippine fishing and petroleum exploration activities, constructing artificial islands, and failing to prevent Chinese fishermen from fishing in the Philippines’ EEZ.
  • China has caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened or endangered species through its recent large-scale land reclamation and construction of artificial islands on seven features in the South China Sea.
  • The Spratly Islands as a group cannot generate any maritime zones as a unit. This appears to be an effort to pre-empt a Chinese claim to any maritime zones based on straight baselines that could be drawn around the Spratlys as a whole.
  • China has aggravated the dispute since the start of the arbitration process, particularly through large-scale land reclamation and artificial island construction activities, which have inflicted irreparable harm on the marine environment.

Though out of award passed by the tribunal, there lies lacuna over which Tribunal technically favored the Chinese –

  • Gaven/McKenna Reef was deemed to be a rock and not a low-tide elevation.
  • The tribunal claimed no jurisdiction in the standoff over Second Thomas Shoal, as it concerned military activities exempted by Article 298.
  • Traditional fishing rights for all states within the territorial sea of features in the Spratlys were apparently upheld based on the finding that the Philippines had traditional fishing rights at Scarborough.
  • The tribunal did not define what the nine-dash line might mean but only ruled on what it could not mean, namely, a claim to historic rights.

The Tribunal has failed to construe upon what is nine dash line. It would thereby mean that China’s Nine Dash Line claim would still stand test. Although the tribunal found that China’s claim to historic rights in the nine- dash line is not compatible with UNCLOS, it did not rule that the nine-dash line per se is illegal or invalid.

Secondly dispute with respect to Second Thomas Shoal also remains unanswered as tribunal had no jurisdiction.

It should be noted that the tribunal did not rule that it was unlawful in principle for China to undertake construction activities on the disputed islands that it occupies.

China’s Position

China claims by far the largest portion of territory – an area defined by the “nine-dash line” which stretches hundreds of miles south and east from its most southerly province of Hainan.

China has denied being bound by the arbitral award of the PCA as it holds the award as null and void.

The Chinese contend that the tribunal does not have the jurisdiction to preside over issues of sovereignty, as it regards ICJ (International Court of Justice) as an Adjudicating Authority to preside over such matters.

China contends that Tribunal prima facie has no power to interfere in the dispute as there has been a bilateral negotiation agreement between Philippines and China.

Thus China has prima facie questioned the Jurisdiction of the tribunal and hence it i snot bound by the award of the tribunal.

My Perspective

UNCLOS is a major treaty, but it covers only a very limited number of issues being contested in the South China Sea—excluding the most fundamental issues of sovereignty and sea boundary delimitation. An arbitral tribunal established under UNCLOS can only consider disputes on the interpretation or application of UNCLOS, and convention contains no provisions on how to resolve sovereignty issues. This is one of major limitations of PCA which means that issue of Sovereignty would remain unsolved.

The Question over Jurisdiction of the Tribunal has been China’s Primary objection, as issue of sovereignty needs to be taken up before the International Court of Justice according to well established principles of International Law.

Secondly the tribunal has erred in denying that there exists between China and the Philippines an agreement to settle the disputes in question through bilateral negotiation. Like in case of India and Bangladesh Land Border dispute, dispute was resolved vide negotiations between both the nations. But in this dispute, the tribunal erred in exercise of its powers and jurisdiction.

Distance between the Island and Mainland is never a critical element in cause of determination of sovereignty. Take for example – Great Britain exercising its sovereignty over Falkland Islands in South America.

Article 298 of UNCLOS provides that a state may “declare in writing that it does not accept any one or more of the procedures,” including for “disputes concerning the interpretation or application of Articles 15, 74, and 83 relating to sea boundary delimitations, or those involving historic bays or titles,” “disputes concerning military activities,” and “disputes concerning [certain] law enforcement activities.”

It is universally recognized that land territorial issues are not regulated by UNCLOS. Thus, the territorial issue in Nansha Qundao is not subject to UNCLOS. Thus position of law is quite clear with respect to ambit of operation of United Nations Convention on Law of Sea.

China on its part has also failed to understand that UNCLOS was established as a universal body of rules that is to be interpreted and applied by all state parties in the same manner, notwithstanding their historical and cultural traditions. (as claimed by China)

China’s only lawful claims in the South China Sea would be 12 nautical miles of territorial seas from the land features in the Spratly Islands deemed to be rocks above high tide. China cannot claim an EEZ from any land feature in the Spratlys, as none were judged to be islands under UNCLOS warranting such a zone nor can it claim any historic rights to resources, either, as the tribunal judged that China gave up those rights when it acceded to UNCLOS. The Tribunal’s ruling significantly restricts the scope of maritime claims that China can lawfully make under UNCLOS in the South China Sea.

The award adds clarity to certain extent w.r.t the law of the sea. The ruling sheds light on types of islands which would be entitled to resource zones and those which would not be entitled. The award ensures that the waters in the South China Sea outside the 12-nautical-mile territorial sea from the islands will be open to all states to exercise freedoms of conducting navigation & military activities.

Tribunal tried hard to go into the Pith & Substance of the dispute but it has largely failed in laying down whose territorial claims are superior among disputing parties or whether China’s Nine Dash Line is Illegal per se. The nine-dash line is still relevant because it shows the location of the various islands in the South China Sea over which China claims sovereignty. The difference is that as a party to UNCLOS, China can claim sovereignty only over those islands that meet the definition of an island in Article 121 of UNCLOS, that is, naturally formed areas of land surrounded by and above water at high tide.

Thus in my opinion it would be best suited for the parties to approach the International Court of Justice at Hague so that long impending dispute can be amicably settled, without question of jurisdiction looming over further.

Please Feel Free to Chip in your Dissensions, Opinions & Suggestions !!!!

 

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