The Award in the Philippines/China South China Sea Arbitration, which invalidated most of China’s claims to maritime rights within the nine-dashed line, has irrevocably transformed the legal landscape underpinning the South China Sea disputes. The Tribunal spent the majority of the 1203 paragraphs addressing some of the more contentious issues such as the compatibility of historic rights with the EEZ regime and the definition of a rock. It is therefore easy to overlook the 6 paragraphs in which the Arbitral Tribunal concisely rejected any argument that the Spratly Islands were entitled to generate maritime zones as a unit. Notwithstanding the brevity of the Tribunal’s reasoning, this aspect of the Tribunal’s decision also has far-reaching implications that will inevitably shape the future interactions of the Claimants and extra-regional actors in the South China Sea disputes.
Archipelagos and UNCLOS
Generally speaking, groups of islands or archipelagos can be categorized in three ways. First, there are coastal archipelagos consisting of a group of islands which are situated so close to the mainland that they may reasonably be considered to be part of the coastline (examples include the coasts of Norway, Finland, and Iceland). Second, there are mid-ocean archipelagos, which form the territory of whole states (such as Indonesia, the Philippines, Fiji and the Maldives). Third, there are offshore archipelagos belonging to continental states (also referred to as dependent archipelagos), which are situated far from the coasts of the mainland and cannot be considered part of the outer coastline (examples are the Faroe Islands, the Galapagos Islands under the respective sovereignty of Denmark and Ecuador).
Archipelagos have always posed a problem for international law. Traditionally, maritime zones of individual islands are measured from baselines determined by the low water mark following the sinuosity of the coastline of the island (reflected in Article 5 of UNCLOS). Archipelagos, on the other hand, necessitated treatment distinct from individual islands due to the special interdependence between the islands and the waters surrounding these islands. Thus, during the negotiations of UNCLOS, it was argued that archipelagos should be treated as a singe entity by drawing straight baselines joining the outermost points of the outermost islands. However, because this would have the effect of closing the waters surrounding the islands as internal waters, maritime powers were concerned that treating archipelagos as a single unit would unduly hamper the freedom of navigation. UNCLOS ultimately contained provisions that attempted to balance the competing interests of archipelagic states and maritime powers.
First, coastal archipelagos could rely on Article 7, which allowed the drawing of straight baselines if there is a fringe of islands in the immediate vicinity of the coast and if other conditions were met.
Second, under Part IV of UNCLOS, mid-ocean archipelagos could also draw straight archipelagic baselines connecting the outermost points of islands subject to certain stringent conditions set out in Article 47 provided they met the definition of an archipelagic state in Article 46. Article 46 of UNCLOS defines an “archipelagic State” as a state constituted wholly by one or more archipelagos and an “archipelago” as a “group of islands…interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.” The waters within archipelagic straight baselines were considered archipelagic waters over which the archipelagic State would have sovereignty subject to certain rights of passage for foreign vessels.
Offshore Archipelagos: A Lacuna in UNCLOS?
UNCLOS does not explicitly deal with offshore archipelagos of continental States. During the negotiations of UNCLOS, continental states with offshore archipelagos (including China) argued that Part IV should apply to mid-ocean archipelagos of continental states. However, this was opposed by other States that feared that a vague definition would lead to a plethora of unfounded claims and would pose obstacles to the freedom of navigation. Any mention of offshore archipelagos was thus deleted from negotiating texts.
This has led to two conflicting arguments on the regime applicable to offshore archipelagos. The first view contends that the issue of offshore archipelagos was expressly excluded during the negotiations of UNCLOS. Continental States are unable to draw straight baselines around their offshore archipelagos pursuant to Article 7 because they do not meet the definition of “fringe of islands within its vicinity” or the other requirements in Article 7. Similarly, offshore archipelagos will not fall within the definition of an archipelagic state i.e. a state constituted wholly by one or more archipelagos.
The second view is that UNCLOS does not contain an express prohibition against offshore archipelagos adopting straight baselines around its islands as a unit. Consequently, the issue is one which is not regulated by UNCLOS and continues to be governed by the rules and principles of general international law. In particular, it has been argued that there has been a significant amount of state practice by continental states that have drawn straight baselines around their offshore archipelagos. For example, Portugal has drawn straight baselines around the Azores Islands, Denmark around the Faroe Islands, Ecuador around the Galapagos Islands, the United Kingdom around the Falkland Islands and Turks and Caicos and Spain around the Beleraic Islands of Majorca, Minorca, Ibiza and Formentera in the Mediterranean.
While these States have not clearly articulated what is the legal basis for their claims, it is clear that these dependent archipelagos do not meet the conditions in Article 7 (fringe of islands in the immediate vicinity of the coast) or fall within the definition of an archipelagic state in Article 46. Relying on this, it has been argued by some scholars that this state practice could indicate an emerging rule of customary international law particularly for groups of closely linked islands, where not much ocean space is enclosed.
The counter-argument to this is that the straight baseline claims of these offshore archipelagos has been protested by other states, and is not sufficiently consistent, uniform or widespread to establish customary international law.
The Arbitral Proceedings
China has not officially claimed straight baselines around the Spratly Islands. However, in 1996, it enacted legislation claiming straight baselines around all its territory and expressly around its mainland and the Paracel Islands in the South China Sea (also claimed by Vietnam and Taiwan). In 2012, it officially claimed straight baselines around Senkaku/Diayou Islands in the East China Sea (claimed by Japan and Taiwan).
The Philippines did not raise the issue of the Spratly Islands being capable of generating maritime entitlements as a unit in its original submissions. The issue arose in the Tribunal’s request for supplemental written submissions from the Philippines “on specific issues which the Arbitral Tribunal considers have not been canvassed, or have been inadequately canvassed in the pleadings submitted by the appearing Party.”
In this regard, the Tribunal noted that China has asserted it has a territorial sea, exclusive economic zone and continental shelf based on Nansha Islands as a whole in its position paper of 7 December 2014. In the Tribunal’s view, this could be understood as an assertion that the Spratly Islands should be enclosed within a system of archipelagic or straight baselines surrounding the islands and accorded an entitlement to maritime zones as a unit. Thus, one of the 26 supplemental questions to the Philippines was “as a matter of international law, an archipelago not pertaining to an archipelagic State (as defined by Article 46 of the Convention) may be subject to a system of straight baselines surrounding the archipelago as a whole” and “whether the Spratly Islands may be such an archipelago pursuant to the application of the Convention, or of historic rights or titles, or of general international law.”
Ultimately, the Tribunal agreed with the Philippines’ argument that the Spratly Islands cannot generate maritime entitlements as a unit. First, China (or any of the other Claimants) is not entitled to draw straight archipelagic baselines around the Spratly Islands pursuant to Article 47. China is not an archipelagic State and further, the ratio of water to land in the Spratly Islands would greatly exceed the requirement in Article 47 that the ration of water to land be between 1 to 1 and 9 to 1.
The Tribunal also rejected the argument that China (or any of the other Claimant States) can rely upon Article 7 to draw straight baselines around the Spratlys. The Tribunal opined that Article 7 only allows for the application of straight baselines in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, which clearly was not the case for the Spratly Islands.
Lastly, the Tribunal also found that China (or any of the Claimant States) are not permitted to draw straight baselines around the Spratly Islands under general international law. Although UNCLOS does not expressly preclude the use of straight baselines in other circumstances, Article 7, taken together with the conditional permission in Article 46 and 47, excludes the possibility of employing straight baselines with respect to offshore archipelagos not meeting the criteria for archipelagic baselines. Even though some States employed straight baselines for their offshore archipelagos to approximate the effect of archipelagic baselines, there is no evidence that this has amounted to the formation of a new rule of customary international law that would permit a departure from the express provisions of the Convention.
Implications of the Award
There are some indications that China may at some point declare straight baselines around all the features making up the Spratly Islands or around the main islands which are situated close together in the Spratly Island Group. On 12 July 2016, after the Award was issued, the PRC Government issued its arguably most comprehensive statement on its South China Sea claims. China stated that it has (1) territorial sovereignty over the South China Sea Islands, including the Spratly Islands and Paracels, (2) internal waters, territorial sea and contiguous zone based on the South China Sea Islands (3) an EEZ and continental shelf based on the South China Sea Islands and (4) historic rights in the South China Sea. Further, according to one scholar, an article in the official newspaper of the PLA on 18 July argues that one aspect of China’s claim is that China has historic title to waters within archipelagos or island groups that are at relatively close distance and that can be viewed as an integrated whole, and that China can draw straight baselines around such islands.
The Award has unequivocally stated that offshore archipelagos are not entitled to draw straight baselines if they do not meet the requirements in UNCLOS as set out in Article 7 on straight baselines or Articles 46 and 47 on archipelagic baselines. It has found that the Spratlys Islands do not meet either requirements, and there is no customary international law that would allow them to do so. China’s unilateral declarations that the Award is null and void has no legal effect and the Award is still final and binding as between the parties. Equally as important it is the fact that the Award can also be used as a subsidiary means for determination of rules of law under Article 38 of the ICJ Statute.
The Award means that China will face considerable challenges if it were to now declare straight baselines around the Spratly Islands, or even around islands which are grouped closely together, and claim maritime zones from it. Other States can now rely upon the Award to demonstrate that straight baselines around the Spratly Islands are contrary to international law. Such an action would in particular put it on a collision course with the United States and its concern for the freedom of navigation. It will enclose waters that were previously used for navigation as China’s internal waters. Further, as argued by one commentator, an EEZ claimed from the Spratly Islands as a unit could also re-invigorate tensions between the two super-powers on the legality of military activities in the EEZ. Thus, China should carefully consider the long-term ramifications of a straight baseline declaration, not only in terms of its legality but also in terms of the impact it could have on an already volatile situation.