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By Li Xue & Yuwen Zheng

Legal Defects of the South China Sea Ruling

Sep. 16, 2016  |     |  0 comments


Mainstream Chinese rejection of the South China Sea ruling by the tribunal at the Permanent Court of Arbitration in the Philippines v. China case is based on at least three reasons. First, the case contravened the general principle that arbitration can only be initiated after a full agreement has been reached between the State Parties concerned. Second, the case essentially dealt with disputes over land territory and maritime boundary delimitation. The sovereignty over land territory is a matter beyond the purview of United Nation Convention on the Law of the Sea (UNCLOS). China also made a public declaration in 2006 which excluded the application of the dispute resolution mechanism under Article 298 of UNCLOS to issues relating to boundary delimitation, historic bays and titles, military activities, and so on. Third, the Philippines did not satisfy the requirement in Article 281 of UNCLOS or the agreements it had reached with China, nor did it seek communication with China according to Article 283. What’s more, Article 299 says: “A dispute excluded under Article 297 or excepted by a declaration made under Article 298 from the dispute settlement procedures provided for in section 2 may be submitted to such procedures only by agreement of the parties to the dispute.”

However, Western mainstream media and scholars believe that the tribunal had jurisdiction over the case. Their reasons include: (a) the State Parties were obliged to accept the compulsory arbitration once they have ratified UNCLOS, which is different from the practice under general international laws and regulations; (b) if the State Parties had not reached a consensus on choosing a dispute settlement mechanism from the International Court of Justice, the International Tribunal for UNCLOS, an arbitral tribunal constituted in accordance with Annex VII of UNCLOS, and a special arbitral tribunal constituted in accordance with Annex VIII of UNCLOS, the complaining party has the right to request the constitution of an arbitral tribunal and initiate arbitration procedures according to Article 287, Article 288, Annex VII and so on; and (c) according to Article 288 of UNCLOS, the parties of dispute have no authority to decide whether the Philippines’ claims are exceptional; rather, such matter is for the arbitral tribunal to decide.

After the ruling was announced, the analysis on it has become a focus. Important international legal problems include (a) whether the Philippines had fully communicated with China about the South China Sea dispute before initiating the arbitration; (b) whether the arbitral tribunal had obeyed the legal principle of prudence, (c) whether the ruling was fair and just; (d) whether it was reasonable to declare that Taiping/Itu Aba Island is rock without a 200 nautical mile Exclusive Economic Zone (EEZ); and (e) whether the ruling meets the political wishes of coastal states and island states in the world.

Prior Communication

The tribunal considered that multilateral agreements — such as the Declaration on the Conduct of Parties in the South China Sea, the Treaty of Amity and Cooperation in Southeast Asia, the Convention on Biological Diversity, and the series of joint statements between China and Philippines — did not preclude or forbid the Philippines from initiating arbitration. In addition, the diplomatic records between both parties show that both sides had exchanged views with each other regarding the dispute. The Philippines sought multilateral negotiation while China insisted on bilateral negotiation. Therefore, the Philippines had the right to submit the dispute to arbitration, and the arbitral tribunal had the right to accept the arbitration. The problem is that what inter-governmental documents usually reflect are the preferences and options of the relevant parties on dispute resolution. It was unlikely for the arbitral tribunal to find any precedent for “forbidding the third-party’s involvement for dispute resolution” to be included in the articles of interstate agreements.

In practice, China had proposed and implemented the dual-track approach since 2014, which means China had accepted dealing with the South China Sea dispute under the multilateral framework. What’s more, multilateral negotiations between China and ASEAN states in the “Code of Conduct in the South China Sea” is another demonstration of China’s willingness to conduct multilateral negotiations. The negotiations started in December 2013 when these countries participated in a conference in Suzhou and continued recently in a conference at Ha Long Bay in June 2016. Moreover, has the Philippines proved that it had communicated with China on any of its fifteen submissions, and that such communications had been ineffective? If the Philippines had not exchanged views with China, was it appropriate for the Philippines to initiate arbitration before informing China? In fact, it was reported that the Philippines had consulted the International Tribunal for UNCLOS on this matter, and that it received the reply that it was not necessary to communicate on specific issues. If this is true, the problem would be more serious.

Legal Principle of Prudence

As we all know, UNCLOS was a result of a 9-year-long negotiation which reflects the will of most states and has become the principal law in dealing with maritime issues. Hence, UNCLOS is considered to be the “maritime constitution” and has been ratified by 168 states thus far. The United States is the only country among the five permanent member states in the United Nations Security Council which has refused to ratify UNCLOS. The other four permanent member states which have ratified UNCLOS have made similar statements that disputes over maritime boundaries, military activities, and so on, should be exempted from the compulsory dispute settlement set in international judicial and arbitral procedures. (According to information on the official website of Chinese Ministry of Foreign Affairs, the Chinese government sent a statement to the Secretary General of the United Nations on August 25, 2006, in which China ruled out the possibility of applying international judicial or arbitral procedures to “disputes concerning maritime delimitation, historic bays or titles, military and law enforcement activities, and disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations”.). China was exercising the member states’ rights entitled by UNCLOS.



The tribunal’s clarification of the Regime of Islands in Article 121 of UNCLOS has caused widespread concern and anxiety in international society.



International laws are set to solve interstate conflicts through low-cost and peaceful means. However, compared with domestic law, international law which is usually called “soft law” lacks strong enforcement power. Many provisions stipulated under international law result from mutual compromises among the relevant parties, and therefore lack clarity and have room for different interpretations. When the relevant parties cannot agree on certain issues, international laws usually avoid mentioning them in specific articles, which effectively circumvent many potential conflicts. Such strategy reflects the principle of prudence in the process of international law-making. In international judicial and arbitral practices, the principle of prudence covers at least three aspects.

First, mutual agreement should be obtained from both relevant parties and the unilateral submission of arbitration should be refused. Second, in general, only inter-governmental disputes and cases raised by organizations — rather than personal appeals — should be accepted. Third, the rulings should reflect the spirit of existing international laws and regulations, in order to avoid making unambiguous adjudication which could violate the relevant parties’ will and give rise to new disputes even when it is not necessary to do so.

The South China Sea arbitral tribunal did not follow the principle of prudence properly. In particular, its clarification of the Regime of Islands in Article 121 of UNCLOS has caused widespread concern and anxiety in international society. Some have wondered whether the ad hoc arbitral tribunal constituted by five arbitrators has the right to make a ruling that violates the will of many signatory states. Can the tribunal make judgements on issues that have not been submitted by the Philippines? Has the tribunal solved or made new disputes? If this trend continues, will other states want to join an international institution like UNCLOS? Is such legal radicalism and expansionism the mainstream of international law?

Equity of the Ruling

The tribunal agreed with 14 of Philippines’ 15 arbitration claims within a short time. It is obvious that the arbitral tribunal was partial to the Philippines, which is rare to see in international judicial and arbitral history. The general way is to declare one party’s win over the other while allowing the other party to enjoy some rights, which will show legal fairness and allow for the enforcement of the ruling. However, this tribunal’s one-sided result surprised most scholars and caused worries about the fairness of the ruling.

The tribunal also deemed Chinese land reclamation at seven islands and reefs non-military in nature. However, as has been done by the Philippines, Malaysia, and Vietnam, China has also stationed its military on its controlled islands and reefs in the Nansha/Spratly Islands. It is impossible for China to allow these islands and reefs to remain purely for civilian use under the intense situation in the South China Sea. In fact, as the biggest coastal state, China has claimed that it will use the seven expanded islands not only for the installation of essential defence facilities but also for the provision of public goods, such as transportation, medical services, disaster relief, scientific research, and so on. Nevertheless, the tribunal made a counterintuitive judgement in order to avoid the restriction of jurisdiction under Article 298 of UNCLOS. Meanwhile, the tribunal found that the Nansha/Spratly Islands should not be treated as a whole to generate maritime zones on its own, which was not included in the Philippines’ claims. Thus, the ruling was not merely a reflection of legal activism and expansionism but also a violation of the common sense of “no trial without complaint” in international law.

Legal Status of Taiping/Itu Aba Island

The tribunal determined that all islands and reefs in the Nansha/Spratly and Zhongsha Islands (Macclesfield Bank and the Scarborough Shoal) cannot generate any EEZ, which is entirely different from the universal understanding among international jurisprudential and scholarly circles who have studied the South China Sea issues. In the past few years, the authors have taken part in many academic conferences and interviewed dozens of specialists on international law and the South China Sea. The number of islands that the specialists believe can generate EEZs is varied, ranging from five to more than ten, and even more than thirty. There is at least one common ground among them: that Taiping/Itu Aba Island meets the standard of “island” as defined by UNCLOS.

Then, what made the tribunal determine that Taiping/Itu Aba Island is not capable of sustaining human habitation? The Philippines outlined eight reasons.

1) There is no fresh water on Itu Aba suitable for drinking or capable of sustaining a human settlement;
2) There is no natural source of nourishment on the feature capable of sustaining a human settlement;
3) There is no soil on Itu Aba capable of facilitating any kind of agricultural production that could sustain human habitation;
4) There has never been a population on the feature that is indigenous to it;
5) Excluding military garrisons, there has never been human settlement of any kind on Itu Aba;
6) There was not even a military occupation prior to World War II;
7) The Taiwanese troops that are garrisoned at Itu Aba are entirely dependent for their survival on supplies from Taiwan, and apart from sunlight and air, they derive nothing they need from the feature itself; and
8) No economic activity has been or is performed on Itu Aba.

In the past few months, the Taiwanese authority has proved that Taiping/Itu Aba Island has natural source of nourishment, agricultural soil, and economic activity, and has supplied more than the sunshine and air to people living on it. Indeed, the French archive that the Philippines provided to the tribunal shows that French botanists visiting Taiping/Itu Aba Island in 1936 found the island had some vegetation and was covered partly with soil. Furthermore, the Coast Guard on Taiping/Itu Aba Island belongs to a paramilitary force rather than the regular military garrison, let alone doctors and nurses in the hospital of the island. The occupation of the islands in the South China Sea by France and Japan before World War II is evidence to refute the assertion that “there was not even a military occupation prior to World War II.” As for “lack of indigenous population,” it has never been a necessary condition to satisfy the criterion of forming an island.

The Philippines mentioned specifically that the island lacks fresh water “suitable for drinking” and used it as key evidence. But scholars all know that Taiping/Itu Aba Island and Zhongye/Thitu Island have enough fresh water which is rare in the Nansha/Spratly Islands. Because of the low quality of fresh water, gathering and storing rainwater becomes the first remedial measure before sea water desalination equipment was installed on Taiping/Itu Aba Island, as has usually been done by many people settling on islands around the world for thousands of years. According to the arbitration, countless islands on Earth will possess only 12 nautical miles of territorial waters. It is undoubted that the arbitration challenges all coastal states’ and island states’ will. Do these states need to alter all relevant laws? As we all know, the legal effect of international arbitration is weaker than international judicial judgement, so how could the five arbitrators get enough power to challenge the existing order? Does the arbitration committee make new disputes and conflicts? Do sovereign states support the arbitration? It is unlikely for great powers to indulge this power-expanding activity which may damage their national interests significantly. Some scholars have already pointed out that the arbitration will become a strong reason for the US Senate to reject UNCLOS.


According to the arbitration, countless islands on Earth will possess only 12 nm of territorial waters, which will challenge all coastal states’ and island states’ will.



On Taiping/Itu Aba Island, the Taiwanese authority dug a more than 600 meter deep water well in the 1980s and built a collecting ground and reservoir in 1992. In 1993, Taiwan installed two sea water desalination machines to produce 23 tonnes of fresh water in 4 hours per day. There are four wells on the island now, and these wells produce 65 tonnes of fresh water per day. The salinity in three of the four wells is between 0.1 to 0.3 percent, which is far lower than the level between 3.3 and 3.5 percent of the sea water. The Number 5 well located in the East has the best water quality, which can produce 3 tonnes of water for 1500 people per day. Its solvency reaches 418-427 mg/L, which is close to the standard of mineral water.

Without any field visits, these five aged judges made the decision relying on remote sensing data, several experts’ testimonies, and a few research reports. It is worth mentioning that the testimony presented by one of the experts from Australia is contrary to his previous argument in scholarly papers. The ruling clearly is a result of a subjective judgement and differs from the understanding among academic circles on the South China Sea. Such a radicalized, expansive, biased and arbitrary decision has destroyed international society’s confidence in the fairness of the tribunal.

China’s Historic Rights in the South China Sea

The arbitral tribunal’s explanation on the Chinese historic rights in the South China Sea is also questionable. The tribunal insisted that the Chinese rights of navigation and fishing are not exclusive, and these rights are equivalent to rights on high seas before the conclusion of UNCLOS. The arbitrators also believed that Chinese historic rights in the South China Sea are different from historic bays or titles in UNCLOS. They argued that Chinese historic rights should be limited to living resources which do not include non-living resources such as petroleum and mining resources in the South China Sea. This kind of historic rights is within the scope of UNCLOS.

“Historic rights” is an evolving concept which has been applied to the maritime boundary delimitation between India and Sri Lanka; while “historic bay” is not an old concept and it will take time for people to accept this concept. It is known to those who have studied international politics that even if there are high seas in the South China Sea, these high seas are different from those in the oceans. The natural resources in the South China Sea cannot be shared by the whole world. It is impractical to force China to give up its historical rights and the Nine-Dash Line before the parties concerned have reached compromise. Once the relevant states reach an agreement based on proposals such as “common sovereignty” and “non-exclusive jurisdiction of natural resources”, the South China Sea will act as a catalyst for East Asian integration. The ruling excluded this option and attempted to force China to give up the Nine-Dash Line and bring its claim into full conformity with UNCLOS. This has ultimately radicalized the dispute.

On the one hand, international maritime laws include not only UNCLOS but also international customs and other international treaties. On the other hand, many maritime issues are not regulated by the articles of UNCLOS and hence they need to refer to other international laws and practices. The arbitral tribunal equated international maritime law with UNCLOS and declared that any issues that are not covered by UNCLOS are illegal. The arbitral tribunal, therefore, violated the basic logic of international law. The main purpose behind the ruling is to deny Chinese historic rights which rely primarily on customary international law.

As international legal scholars dig further into the case, more deficiencies of the arbitral ruling will be spotted. The lack of rigor and fairness has failed to prove the professionalism of the arbitrators.

Conclusion

The Philippines did not disclose the fact that the two countries had “effective but slow negotiation under multilateral framework,” nor did it communicate with China prior to the arbitration. The reasons for the tribunal to accept the arbitration were not convincing. The ruling has violated the principle of prudence and reflected legal expansionism and radicalism. Although the arbitral tribunal has done its best to keep impartialness in form, its ruling showed obvious bias against China. Besides, the ruling breached the general will of all coastal and island states and “illegalized” many existing relative laws in these states. While the ruling intended to constrain maritime expansionism through decisions such as the restricted interpretation of “islands,” it will inevitably cause more maritime disputes because the maritime zones of many states generated from islands will be deprived. Meanwhile, the ruling limited the development of international law and denied the possibility of solving the South China Sea dispute based on proposals such as “common sovereignty” and “non-exclusive jurisdiction of nature resource.”

It appears that the tribunal’s ruling is against the mainstream view among international legal scholars and academic circles on the South China Sea. Therefore, it is likely to become a controversial case and cautionary lesson for the future.

(The authors would like to express gratitude to the following scholars for their suggestions: Dr Liu Heng, Professor Luo Guoqiang, Dr Liu Dan, Dr Zuo Xiying, Dr Zheng Zhihua, and Dr Li Kaisheng. Dr Yang Fang from Australia National University polished this translation.)



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