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Foreign Policy

Blinkered Justice at The Hague on the South China Sea

Aug 22 , 2016
  • Sourabh Gupta

    Senior Fellow, Institute for China-America Studies

The international system is an arena of great power competition and tends to gravitate towards zero-sum outcomes due to the relative imbalance in power capabilities and the absence of a central political authority. International jurists on the other hand, as the ex-jurists reliably assured, prefer to hew in their reading of the law to middle-of-the-line outcomes that are win-win by nature.

The Chinese government refused to respond to the case, and also refused to attend the hearing when the Philippine team made its arguments.

On July 12, this illusion of judicial fair-play and moderation was irretrievably shattered.

In a sweeping judgment that was as harsh as it was reckless, an arbitral tribunal in The Hague constituted under the United Nations Convention on the Law of the Sea (UNCLOS) issued a thoroughly one-sided award, ruling that many of China’s maritime claims – and actions in defense of those claims – in the South China Sea were contrary to UNCLOS and had thereby violated the Philippines’ sovereign rights and freedoms.

The ruling was harsh because the arbitrators enjoyed ample latitude to carve out a constructive, mid-path interpretation of a critically important but ill-defined provision of maritime law (Article 121 – Regime of Islands), yet chose to indulge in a tortuous train of legal thought that lacked basis in case law and produced a zero-sum outcome that overwhelmingly favored Manila. The ruling was reckless because the arbitrators dismissed an earlier ruling in sea law (on how ‘historic rights’ are obtained in maritime spaces) with a breeziness that was inversely proportional to its tortuous reasoning on the Article 121 ‘island/rock’ issue. At minimum, the panelists bore an obligation to lay out a reasoned basis for overturning legal precedence – and a landmark one at that. Instead they resorted to a superficial explanation that was lifted almost word-for-word from the Philippines’ March 2014 memorial.

When the dust finally settles, the damning irony of the July 12th award will be this: where there was no basis in case law (on the Article 121 question), the tribunal found a means to manufacture one, despite precedent and opportunity to by-and-large side-step this question; where there was basis in case law (on the ‘historic rights’ question), the tribunal struck it down without so much as an explanation of its basis for doing so.

Itu Aba – from an Island to a Rock

The ambiguity of Article 121(3), namely, the ability of a small islet “to sustain human habitation or economic life of [its] own” and thereby qualify as an‘island’ and generate a vast exclusive economic zone (EEZ) and continental shelf has long vexed legal specialists and lay persons alike.

The wording that became the agreed text in April 1975 was the product of an informal consultative process, which left few records of its work due to the deep divisions among the state parties. No consistent trend is discernible in state practice either and, unable to form a consensus on this ‘island/rock’ distinction, the Meetings of the State Parties of the Law of the Sea Convention (SPLOS) have periodically prevented the hand of statutory international expert bodies from weighing-in till the divergence of views is resolved.  Taking the cue, international courts have found artful ways to navigate around this contested definition in the course of maritime delimitation cases.

The net effect was to endow a literalist bent to the interpretation of Article 121(3) – to the somewhat-preposterous point that even tiny features enjoyed the benefit of doubt typically accorded to a larger, fully entitled island.

On July 12, the arbitral tribunal threw decades of jurisprudential caution out the window by separating the definition of an ‘island’ from a ‘rock’ based on features that “sustain human habitation or economic life of [its] own.” Effectively, henceforth, features “which haven’t sustained human habitation or economic life of its own” are to be categorized as ‘rocks.

This subjective re-interpretation was insufficiently extensible to enable the tribunal to reach its pre-determined conclusion to downgrade the largest China-claimed Spratly’s feature, Itu Aba, to the legal status of a ‘rock’ and thereby find jurisdiction to rule on a number of intrinsically-linked submissions against China. Itu Aba in its natural form, however, can sustain human habitation and economic activity and has shown it to be the case in recent history. As such, the tribunal proceeded to heap another disqualifying test: the ‘human habitation’ referenced in Article 121(3) was to “be [now] understood to involve the inhabitation of the feature by a stable community of people for whom the feature constitutes a home and on which they can remain.”

Having substantially transformed the meaning of Article 121(3) from “rocks which cannot sustain human habitation or economic life of their own” to “rocks which haven’t sustained a settled community of inhabitants or economic life of their own” (Itu Aba has served as a temporary residence for extended periods but not a permanent home), the tribunal thereafter struck down the capacity of Itu Aba and every other high-tide feature in the Spratlys group to generate an EEZ or continental shelf.

The Tribunal’s interpretation bears little resemblance to the letter or spirit of Article 121 and situates at the outer end of the academic literature on the subject. The provision lays down no requirement – implicit or other – that the ‘human’ presence referenced be an exclusively civilian one; that the ‘habitation’ on the feature be a “non-transient one who have chosen to stay and reside”; that the feature must furnish an abstract “proper standard” of lifestyle; or that the feature’s entitlement was exclusively intended for a beneficial indigenous population. And while the object and purpose of Article 121 was indeed intended to not enable a tiny feature to generate a disproportionately large entitlement to maritime space, there is utterly nothing in the official record of the Law of the Sea negotiations to suggest that a “stable group or community” standard was envisioned to qualify a feature as a full-entitled island that can ‘sustain human habitation.’

Further, the award’s foray into the language of equitability and delimitation (to which the question of a feature’s entitlement is intrinsically-linked) confirms the impression that the tribunal methodically tailored the definitional goalposts to circumvent China’s legal opt-out from maritime delimitation-linked cases to pre-meditatively orchestrate the downgrading Itu Aba to a ‘rock’ – no matter how high the new bar set or how farcical the new reality. Who knew until July 12 that one could land a military aircraft on a (naturally-formed) rock!

‘Historic Rights’ and the Nine-Dash Line

‘Historic rights’ in maritime spaces obtain in two forms – as an exclusive right and as a non-exclusively-exercised right. The former, typically as a ‘historic title’ or ‘historic waters’ right, pertains to maritime areas appurtenant to a mainland coast, bears the hallmark of state sovereignty, and is directly referenced in the territorial sea provisions of UNCLOS. By contrast, in waters within a semi-enclosed sea that were hitherto the high seas but have since become part of a coastal state’s exclusive maritime zones, a privately-acquired and non-exclusively exercised historic right of access continues to prevail. This latter right originates not in the text of UNCLOS but from the body of general and customary international law that is preserved by UNCLOS and is applicable in each of the maritime zones created by it.

The arbitral tribunal was right to observe that China cannot enjoy any form of exclusive ‘historic rights’ in the South China Sea that is not appurtenant to its mainland coast. Especially in waters that are within its nine-dash line, such exclusive rights to fish or conduct minerals-related activity has been decisively superseded. Equally, the tribunal was wrong to observe that China cannot enjoy a non-exclusive ‘historic right’ of access, insofar as traditional fishing is concerned, in waters that are within its nine-dash line but have since become part of the EEZ of its littoral neighbors in the South China Sea. Chinese nationals can indeed enjoy such a right.

In a landmark ruling in the late-1990s (Eritrea v. Yemen), the International Court of Justice (ICJ) had ruled that there are “important elements capable of creating ‘historic rights’ [in the semi-enclosed Red Sea] which accrued … as a sort of servitude internationale (or easement) falling short of territorial sovereignty.” So long as the “special factors [that went into the crystallization of this right of access for traditional fishermen] constituted a local tradition, [it was] entitled to the respect and protection of the law … and was not qualified by the maritime zones specified under UNCLOS.” Mauritius v. United Kingdom (2015) reconfirmed that “states may possess particular rights … by virtue of … local custom” which operate “for all intents and purposes equivalently” in each of the maritime zones created by the Convention, and that the coastal state bears an obligation to pay “due regard” to these user states (traditional fishing) rights and exercise its Convention-based rights “subject to these other rules of international law.”

On July 12, the tribunal cherry-picked the arguments that were expedient, disregarded those that could have validated a non-exclusive Chinese traditional fishing right of access within the nine-dash line, and was remiss in laying out a reasoned basis for its casual ignoring – and overturning – of a landmark precedent.

The tribunal agreed that Manila was entitled to reach beyond the text of the convention to enjoy a non-exclusively exercised traditional fishing right in the territorial sea of the Scarborough Shoal, which was part of the body of general international law preserved by UNCLOS. It disregarded prior injunctions that “[t]he traditional fishing regime is not limited to the territorial waters of specified [mid-sea] islands” but also extends for all intents and purposes equivalently in each of the maritime zones created by the Convention – this, even as the tribunal implicitly admitted that Chinese fishing practices within the nine-dash line had been immemorial, continuous, reasonable and certain and thus constituted a local tradition. Obliged to explain its inconsistent view why traditional Chinese fishing practices that satisfied the threshold of being a local tradition in a semi-enclosed sea should not enjoy a limited right of access within a neighboring foreign EEZ, the tribunal could only muster that the ICJ was able to reach this conclusion in Eritrea/Yemen “because it was permitted to apply [pertinent] factors other than the Convention itself under the applicable law provisions of the parties’ arbitration agreement” and was thereby “empowered to … go beyond the law on traditional fishing as it would exist under the Convention.”

Even this feeble explanation does not cut it.

First, a procedural rule is no basis to strip a long-standing historical practice that has acquired the force of law and crystallized into a privately-held ‘historic right.’ Such privately-acquired rights do not even cease on a change of sovereignty (as the tribunal panelists themselves remarked in the award) – let alone cease on the assignment of a newly-created ‘sovereign right’ that a coastal state now enjoys in its EEZ under UNCLOS. Second, traditional Chinese fishing practices materially satisfy the key “pertinent factors” listed by Manila in its March 2014 memorial (historic tradition of joint use of the mid-sea islands and islands’ waters by fishermen from both sides in a semi-enclosed sea without need for prior authorization and in the absence of restrictions or regulations). Manila admitted as much to this when it acknowledged at the merits hearing in November 2015 that artisanal fishermen from China have also fished “for as long as anyone can remember” in the northern sector of the South China Sea and “during the 19th and early 20th century” in the southern sector of the South China Sea.

Finally, the tribunal offered no reason, or defense, why the established jurisprudential basis by which non-exclusive ‘historic rights’ form in maritime spaces is, as of July 12, legally unsustainable. In Eritrea/Yemen, the ICJ had reached beyond the western legal tradition to imaginatively rule that such rights accrue as a sort of servitude internationale (i.e. as a sort of non-possessory right or interest in access and resources) in waters that were hitherto the ‘high seas’ within a semi-enclosed sea but have since become part of a coastal state’s EEZ. By extinguishing this landmark ruling without so much as an explanatory footnote (in an award otherwise crammed with 1,498 footnotes), the tribunal also tore down an economically useful and rational facility – servitudes/easement – that both the ICJ and its predecessor, the PCIJ, have paid recognition to in the course of judgments spanning the 20th century.

It also begs the question what the legal justification for the preservation of this non-exclusive right of access is in territorial seas now (such as in the territorial sea of the Scarborough Shoal which the tribunal affirmed in favor of the Philippines). After all, a territorial sea, like an EEZ, is also an exclusive maritime zone and prior to its expansion from 3 to 12 nautical miles by UNCLOS, the waters therein too, like in the case of an EEZ, had hitherto been the ‘high seas.’ What’s good for the goose ought to be good for the gander.


The five-member arbitral panel enjoyed a golden opportunity to chart a constructive, mid-path approach to one of the foremost legal (and political) questions of the Asia-Pacific. It could – and should – have chosen to foster mutually cooperative tendencies on both these critically important but ill-defined or ill-understood provisions of the law. Had Itu Aba been ruled a fully-entitled island, it could have furnished a basis for Sino-Philippine oil and gas joint development in the overlapping area of entitlement. Now, with no geographic overlap to contend with and a de facto delimitation of the China–Philippines maritime boundary furnished, the principle of ‘shelving differences and seeking joint development’ has been rendered hollow and the raison d’être that sustains the envisaged Code of Conduct undercut. Equally, had the tribunal re-confirmed that a local custom-based traditional fishing right was preserved across all the exclusive maritime zones in this semi-enclosed sea, it could have furnished an incentive for the nine-dash line to be thrown open on equal terms as a common fishing ground for all artisanal fishermen of every littoral state that borders the sea.

In lighting a judicial fire under the law and politics of the South China Sea and placing the two on a collision course, the arbitral tribunal has performed a disservice. The consequences will reverberate for a considerable time to come – with international law, likely, coming off the poorer.

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