Earlier in January this year, the Philippines submitted a unilateral challenge to China on certain key aspects of their ongoing dispute in South China Sea (SCS) maritime delimitations under the United Nations Convention on the Law of the Seas (UNCLOS). This challenge will take the form of an arbitration case before the International Tribunal on the Law of the Seas (ITLOS). To the uninitiated, this move is intriguing but unclear as to its real-world implications for international maritime law or the future of SCS geopolitics. The following primer attempts to translate the dense jargon of maritime law, distill the meanings behind subtle diplomatic language of Claimant States, and untangle the intricate web of geopolitical maneuvering to provide a clearer, layman picture of this case and its implications for the SCS disputes.
Why the arbitration case?
The ongoing dispute between the Philippines and China has been simmering for many years. Ever since a joint exploration agreement (along with Vietnam) to conduct seismic review of potential hydrocarbons in the SCS region collapsed in 2007, the tone and intensity of SCS disputes have escalated. The situation came to a head when in early 2012, Chinese Coast Guard ships came into confrontation with a Philippine naval ship over harassment of fishermen in Scarborough Shoal, a formation in the Spratlys (南沙in Chinese). The Scarborough Shoal standoff did not end well for the Philippines as China has now established an ongoing blockade of the shoal. (More discussion of this standoff and its implications to follow in a later article) In response, the Philippines moved for ASEAN to issue a unified statement to China censoring it for its actions in the South China Sea. However, other ASEAN members proved reluctant to do so for many reasons. (More discussion of this will come in a later article) Suffice it to say, by Fall 2012, the Philippines began actively exploring other options to pursue its dispute with China.
What is happening?
To the layman observer of SCS disputes, the Philippines’ move to challenge China by arbitration may have been surprising. After all, it’s generally understood that China studiedly avoids multilateral engagement on SCS disputes and/or 3rd party mediation, insisting that the SCS disputes are a regional issue that should be addressed on a bilateral basis. Questions regarding this case include:
- Can the Philippines unilaterally bring China to arbitration? And if so, does China have to engage?
- Regardless of China’s engagement, does the ITLOS have jurisdiction to rule on the challenges?
- What are the points the Philippines is challenging?
- Even if ITLOS has jurisdiction to rule on certain aspects of challenges put forth, what are the actual implications for SCS disputes?
Can the Philippines unilaterally request arbitration?
On the first question, for those unfamiliar with international maritime law, the Philippines is using Section 2 of Part XV, Art. 286 of the UNCLOS, which in principle implies that if States have a disagreement with regards to the interpretation of a certain aspect of UNCLOS and they do not reach an agreement via normal negotiations, one State can submit the dispute unilaterally to a court/tribunal for review. This process is known in the legal community as the Compulsory Dispute Settlement (CDS) system.
Art. 287 allows States four dispute settlement options: two arbitration procedures: (1) under Annex VII, (2) “special” arbitration under Annex VIII; and two adjudication procedures: (3) before International Criminal Court (ICJ), (4) before ITLOS. The difference between arbitration and adjudication is degree of formality and the hearing body; in arbitration, a non-partial third party reviews the case in a mediation hearing; in adjudication, a court, judge, or other legal entity proceeds over trial-like litigation. Because neither China nor the Philippines has indicated a preferred method of dispute settlement, Art. 287 stipulates that procedures go automatically to option (1), arbitration under Annex VII. This is basically mediation before a five person tribunal with two members named by each party to the dispute and the rest by the President of ITLOS. As Huy Duong pointed out in his insightful CogitASIA post, China – likely in an effort not to dignify Philippine’s challenge – opted out of appointing a member. The current ITLOS President is Japanese, leading some observers to suspect the tribunal, which was appointed late last month, may be stacked against China (a point that China can no doubt use later to cast doubt on the impartiality of the tribunal).
Does China have to respond?
Also much touted in media coverage of the SCS disputes is that China, upon signing onto the UNCLOS (August 25, 2006) took an “opt-out” stipulated in Sec. 3 of Part XV, Art. 298 which states that three categories of disputes, specifically (1) those concerning the interpretation or application of articles 15 (territorial seas), 74 (Exclusive Economic Zones), 83 (continental shelves) relating to sea boundary delimitations and “historic bays or titles”; (2) those related to “military activities”; and (3) those related to activities of the Security Council, are excluded from CDS proceedings. China is not the only country that has taken this option; in Asia, Australia and Korea have both also opted-out. So the question of whether or not China must be party to the arbitration case is no, if China can successfully dispute the tribunal’s jurisdiction to hear the case.
Does the ITLOS have jurisdiction?
Thus, the viability of the Philippine’s entire case depends on how it has phrased its dispute, what aspects of interpretation of UNCLOS it is challenging, and whether or not the ITLOS tribunal determines it has the jurisdiction to rule on any of the points that the Philippines is challenging. Further note of importance is that even if the the points the Philippines is challenging do not fall into the Sec. 3 exclusion categories listed above, the tribunal can still rule that it does not have jurisdiction because UNCLOS does not give it the power to directly review sovereignty or maritime delimitations disputes. ITLOS can only review disputes with regards to interpretation and application of UNCLOS.
Herein the guesswork begins. It is uncertain if the tribunal will take a strict interpretation of UNCLOS, in which it limits its jurisdiction greatly and refuses to review disputes of even interpretations of certain controversial clauses because they would indirectly result in a cascade rulings on sovereignty or maritime delimitations. Or the tribunal can decide to move forward with hearing selective points that the Philippines brought forth and make nuanced judgments.
What are the points of dispute that the Philippines brought forth?
For this arbitration, the Philippines listed 13 points for the tribunal to consider which can be divided into three general lines of argument. For more info, refer to this Q&A done by CSIS’ Gregory Polling or the original Notification by the Philippines.
1) Can the “9-dash line” serve as basis for valid maritime claims in the South China Sea?
This argument assumes China is taking its most expansive interpretation of the “9-dash line”, claiming sovereignty over not only the land features but also exclusive rights to all surrounding waters and therein-contained resources. This however is an inaccurate premise, as China has not officially claimed the “9-dash line”. Rather, it is a legally ambiguous line whose interpretation is hotly debated even within China’s domestic law and scholarship. The Philippines is trying to beat to the chase and get ITLOS to preemptively rule out the legality of the 9-dash line. Some experts believe that the tribunal can potentially claim jurisdiction to review this point.
2) “Island” status of low-tide elevations in the Spratlys and ineligibility for territorial sea
UNCLOS contains certain clauses on what defines a land feature as an “island”, an important determination because it decides if a land feature can generate 12 nautical miles (n.m.) of territorial sea and/or 200 n.m. of an EEZ. This first requirement for a land feature to qualify as an “island” is that it must be above-water in high tide. The Philippines asserts that certain disputed low-tide features in the Spratlys, specifically Mischief Reef, McKennan Reef, Gavin Reef, and Subi Reef, can NOT qualify as “islands” or “rocks” and therefore have no territorial seas, even if the occupying Claimant constructed above-tide infrastructure on the feature. However, a big counterargument is that even if these features don’t qualify as “islands” on their own, they still lie within the territorial seas of larger disputed land features that can be claimed as “islands”.
3) “Island” status of high-tide elevations in the Spratlys and ineligibility for EEZs
The second requirement for a land feature to qualify as an “island” that can support a 200 n.m. EEZ is that the land feature must be capable of supporting human habitation and/or independent economic activity. Otherwise, the feature is just a “rock” and can only qualify for 12 n.m. of territorial waters. With this point, the Philippines is asking ITLOS to rule whether or not a land feature occupied by a Claimant who has built infrastructure on them to support life/economic activity is sufficient to deem it more than a “rock”. The features specifically in question are Scarborough Shoal, Johnson South Reef, Cuarteron Reef, and Fiery Cross Reef. Same as above, the complication in this line of argument is that these land features can fall in to the 200 n.m. EEZ of other larger features that could be “islands” making the argument again, moot.
What are the potential implications of this arbitration for the SCS?
There are many possible scenarios that can result from this tribunal. One of the most important factors to consider is time. An arbitration before ITLOS can take anywhere between 2-3 years and its results can be swayed by real-world geopolitical developments, diplomatic charm offensives, and public opinion. What looks likely now can be a very different story in two years. Furthermore, it remains to be seen if the selected tribunal decides to push the boundaries of international law and even take the case. If not, it would be a huge diplomatic blow to the Philippines. If it does take the case but limits itself to a very narrow, ambiguously worded ruling, then it will achieve nothing of real affect.
However, there are three major ways by which the tribunal can greatly influence SCS disputes. First, the tribunal deciding to take the case at all is in itself a precedent, indicating that Claimant States can use CDS procedures in SCS disputes. Second, the tribunal can rule that the 9-dash line is an insufficient basis for maritime claims and force China to clarify its legal status. Finally, the tribunal may rule that man-made infrastructure does not qualify a feature for “island” status and therefore it does not qualify for EEZs. If a feature does not qualify for EEZ (or even territorial waters), the Claimant State that occupies that feature does not have the right to claim all of the resources, living and non-living, in those waters. This would make China’s current fishing ban in the Scarborough Shoal illegal under UNCLOS.
However, the final trump card remains: UNCLOS has no real enforcement teeth. If the tribunal in 3 years time issues a ruling that China finds unfavorable, China can effectively choose to ignore the decision all together. China should hope that it does not come to this point however, for by ignoring the tribunal’s ruling, China would effectively communicate its non-intent to fulfill obligations under UNCLOS and would therefore lose all of its future diplomatic goodwill.
Disclaimer: The author is not a lawyer and therefore is not authoritative on interpretations of international maritime law. Notes about discrepancies or corrections are welcome. Please submit corrections to the comments section of this blog. This post is cross-posted with redoceans.com.