On Oct. 29, the UN’s Hague-based Permanent Court of Arbitration made an eagerly anticipated preliminary ruling on a case brought by the Philippines over a dispute with China concerning territorial claims in the South China Sea. Almost immediately, Taipei [which has claims to places mentioned] and Beijing issued objections, each saying they did not accept the ruling, while Tokyo and Manila welcomed it.
The parties all had their own agendas. Above and beyond the question of sovereignty over several islands in the South China Sea, the court took the opportunity to interpret an unclear clause within the UN Convention on the Law of the Sea (UNCLOS) that will be pertinent to the progress of this case.
The court listed 15 points upon which the Philippines had requested arbitration and ruled that it was the proper body to decide on seven of the submissions, that is, Nos. 3, 4, 6, 7, 10, 11 and 13, while seven others — 1, 2, 5, 8, 9, 12 and 14 — were reserved for further consideration.
On the 15th submission, which states that “China shall desist from further unlawful claims and activities,” the Philippines was directed to “clarify the content and narrow the scope” of its claim.
The hearing will then move on from the current jurisdictional phase to the “merits” phase.
The seven submissions for which the tribunal ruled itself to be the proper body to rule on can essentially be placed into four categories.
The first category relates to how Scarborough Shoal (Huangyan Island, 黃岩島), Johnson South Reef (Chigua Reef, 赤瓜礁), Cuateron Reef (Huayang Reef, 華陽礁) and Fiery Cross Reef (Yongshu Reef, 永暑礁) “generate no entitlement to an exclusive economic zone or continental shelf” according to the UNCLOS.
The second category concerns how Mischief Reef (Meiji Reef, 美濟礁), Second Thomas Shoal (Renai Shoal, 仁愛暗沙) — which the Philippines calls Ayungin Shoal — Subi Reef (Jhubi Reef, 渚碧礁), Gaven Reefs (Nansyun Reef, 南薰礁) and McKennan Reef (西門礁) — including Hughes Reef (東門礁) — are all at low-tide elevations and as such do not generate entitlement to a territorial sea, exclusive economic zone or continental shelf.
The third category is about how China has allegedly unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with traditional fishing activities near Scarborough Shoal and has been denying them access to shipping lanes.
The fourth category concerns how China is allegedly violating its “duties to protect and preserve the marine environment under the convention.”
A number of points in the four categories are worth further consideration.
The first concerns whether Scarborough Shoal, Johnson South Reef, Cuateron Reef or Fiery Cross Reef generate entitlement to an exclusive economic zone or continental shelf. Of these four features, only Scarborough Shoal could be considered a reef; the other three are merely low-tide elevations, much the same as Mischief Reef, Second Thomas Shoal, Subi Reef, Gaven Reef and Hughes Reef. The McKennan Reef is a submerged feature and as such entails no entitlement to any nation’s territorial claim. It seems that the first of the Philippines’ submissions admit entitlement to a territorial sea, while the second does not, showing that the Philippines might be unclear as to the geographic nature of the elevations of the features it is discussing.
Second, the Philippines’ submissions talk of how low-tide elevations cannot generate entitlement to a territorial sea, exclusive economic zone or continental shelf, but this provision is nowhere to be found in the UNCLOS.
Article 13, Item 2 states: “Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.”
Reefs such as Mischief Reef are oceanic islands, remote from continents or major islands, but islands nonetheless. If they can, strictly speaking, be considered to be oceanic islands, is it true that they can be considered, according to Article 13, to lack territorial sea of their own?
Third, according to Article 121, Item 3: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”
The wording could certainly be a lot more specific. What exactly does it mean by “rocks?” How does one decide whether a given elevation can sustain human habitation or economic life? Right now, several of the nations surrounding the islands in the South China Sea — China, Vietnam and Malaysia — are busy reclaiming land on the islands that they have territorial control over, increasing the overall surface area of the features and stationing soldiers and residents on them. These places are now perfectly habitable. Does that mean Article 121 is no longer applicable to them? Other countries have been building up coastlines in an attempt to alter the maritime borders between themselves and neighbors. None of these new developments were foreseen in 1982 when the UNCLOS was written.
Fourth, Article 7, Clause 4 of the UNCLOS, states: “Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them.”
China has lighthouses on Cuateron Reef and Johnson South Reef, and so can at least use these reefs to claim territorial waters and adjoining areas.
Fifth, China has yet to make a declaration on the legal status of the nature of eight islands it claims territorial rights over among the Spratly Islands (Nansha Islands, 南沙群島), and the Philippines has unilaterally determined that these islands do not generate entitlement to a territorial sea or any other maritime rights, leading to clashes over fishing rights and other tensions. These tensions also originate from the two parties’ differing understandings of the regulations in Article 121, Item 3.
Much attention has been placed on whether the “nine-dash line” drawn in the South China Sea is in violation of the UNCLOS. The Philippines addresses this question in the second point of its request for arbitration, but this is one of the points the court has reserved for further consideration. In other words, it is yet to be revealed whether the “nine-dash line” holds any water, so to speak.
In general, it seems that the situation in the South China Sea is becoming increasingly tense.
The US’ decision to send a warship through shipping lanes and within 12 nautical miles (22.2km) of the Chinese-claimed Spratly Islands demonstrates not only that there is a clash between the two nations’ scope of influence, it also suggests that the two have different understandings of the UNCLOS, while the US, not being a signatory nation of the convention, still only accepts the three nautical mile territorial waters standard.
This being the case, the whole world would likely welcome more clarity on certain clauses within the convention and for a reasonable solution to be found to the disagreements. However, it should be remembered that some of these disputes have no solution and it is the nations that have sovereignty over the islands in question that should act; it is certainly not necessarily the responsibility of the Permanent Court of Arbitration to unravel this mess.
Chen Hurng-yu is a professor in the Graduate Institute of Asian Studies at Tamkang University.
Translated by Paul Cooper
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