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Foreign Policy

Reassessing the UNCLOS-Defined South China Sea

Aug 11 , 2016

The July 12th Award of an Arbitral Tribunal, constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in the South China Sea case between the Philippines and China, is one of the most significant law of the sea decisions of the century. Notwithstanding protestations, on the contrary, the Award is final and binding and, under Article 296 of UNCLOS, “shall be complied with by all parties to the dispute.”

This is consistent with the mechanisms embedded within the compulsory dispute resolution procedures provided for in Part XV of UNCLOS, which is one of the very few global treaties that provides for the compulsory settlement of disputes. Accordingly, there is no right of appeal and there is no capacity for the decision to be overturned by any United Nations forum. The legal principles settled by the Award may become the subject of further interpretation by courts and tribunals in the future, which could in theory see some aspects of the legal reasoning modified, however that is very much a matter for the future. Accordingly, the Award is legally determinative on the South China Sea maritime disputes between the Philippines and China and has important implications for the maritime claims of other South China Sea states.

What then did the July 12th Award actually substantively decide? First, the Tribunal considered the status of China’s Nine Dash Line claim. While the Line has historical roots, there has been considerable ambiguity as to its legal basis and meaning. In reviewing the nine-dash line, the Tribunal sought to characterise the claim within the framework of the modern law of the sea as reflected in UNCLOS. It was observed that one of the key achievements of UNCLOS was to grant all coastal states the same minimum entitlements to a number of offshore maritime zones, including a 12 nautical mile territorial sea and a 200 nautical mile exclusive economic zone (EEZ) and continental shelf. In return for these universal entitlements, all prior maritime claims were swept away with the only residual rights tied to a narrowly defined set of historic titles and claims to historic bays. As the Nine Dash Line was interpreted as a claim over historic waters, the Tribunal accordingly saw that the claim was not one that survived the entry into force in 1994 of UNCLOS.

Second, the Tribunal thoroughly assessed the status of multiple maritime features scattered throughout the contested area of the South China Sea, with a principal focus upon islands, rocks, reefs and shoals in the Spratly Islands group. Here the Tribunal gave particular attention to the interpretation of Article 121 of UNCLOS, which deals with the regime of islands and recognises that islands are to be equated with the coastline of a mainland and accordingly generate equivalent entitlements. Rocks, on the other hand, are distinguished from islands and are only entitled to a 12 nautical mile territorial sea. Even smaller features, referred to in Article 13 of UNCLOS as ‘low tide elevations’ that would extend to a rock or a reef submerged at high tide, on their own generate no maritime zones at all. The Tribunal was confronted with two challenges when it came to assessing these issues. The first was that Article 121 had not been the subject of exhaustive analysis by any prior court or tribunal, while the second was the need to individually assess the various maritime features in the South China Sea. In this respect, the Tribunal was aware of the balance that UNCLOS had sought to achieve between the legitimate entitlements of coastal states to a number of maritime zones giving them sovereign rights and jurisdiction over living and non-living resources, and the more general rights and interests of the international community to residual ocean areas that did not fall within the limits of coastal states. Accordingly the Tribunal was of the view that a conservative position should be taken with respect to the characterisation of very small maritime features. A forensic analysis of the various maritime features in the South China Sea the Tribunal determined that none were Article 121 islands with the result that they were properly characterised as either rocks or low-tide elevations. Accordingly, Scarborough Shoal, Gaven Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef and Fiery Cross Reef were all determined to be rocks, which in their natural state did not generate an EEZ or continental shelf. Subi Reef, Gaven Reef (South), Hughes Reef, Mischief Reef and Second Thomas Shoal were likewise found to be low-tide elevations within the meaning of Article 13 of UNCLOS. However, while the Tribunal came to a concluded view as to the status of these maritime features for the purpose of UNCLOS, it did not make any judgment as to who is the territorial sovereign of the disputed features, and this remains a matter for resolution either through diplomatic or legal processes.

Third, the Tribunal addressed the status of land reclamation and artificial island building activities conducted by China. In this respect, it followed that because none of the disputed rocks, reefs and shoals were able to generate an EEZ, and that the entitlement of the Philippines to claim an EEZ over that portion of the South China Sea to the west of the Philippine archipelago was not in dispute, the relevant area was part of the Philippine EEZ. As such, only the Philippines—not China—had a capacity under Article 60 of UNCLOS to build artificial islands within the Philippines EEZ. Likewise, the extensive environmental impact arising from the building by China of artificial islands within the Philippines EEZ was also found to infringe numerous environmental provisions of UNCLOS.

The Award’s impact will reshape much of the legal discourse in the South China Sea. China’s capacity to rely upon the Nine Dash Line for the purposes of the law of the sea has been diminished, though it could remain a basis for China’s territorial claims. The once anticipated expansive maritime entitlements of numerous small maritime features have now been determined to possess nothing greater than a 12 nautical mile territorial sea impacting upon fisheries and oil and gas entitlements, while China’s artificial island-building within the EEZ of the Philippines violates UNCLOS. These are significant rulings, especially for China, and naturally will take some time to digest. All of the claimants in the South China Sea should now be able to step back and reassess how they view the region. The Award reaffirms that the South China Sea maritime domain is dominated by the EEZ and continental shelf claims of continental and archipelagic states such as Malaysia, the Philippines and Vietnam. Others will continue to have rights, especially if they have legitimate territorial claims. The next step should be to agree upon mechanisms to peacefully resolve outstanding territorial disputes through diplomatic or legal processes.

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