On July 12, the Permanent Court of Arbitration in The Hague, Netherlands, finally announced its ruling in a South China Sea case the Philippines filed against China. Reactions to the judgement have been sharply polarized, with China and Taiwan firmly opposed, while the US, Japan, the Philippines and Vietnam support it. The court’s findings do not just affect various nations’ claims to islands and reefs in the South China Sea; they will also affect the maritime rights of nations whose maritime territorial basepoints and baselines have already been defined based on the UN Convention on the Law of the Sea (UNCLOS).
Regarding the “nine-dash line” claimed by China — or the “11-dash line” claimed by the Republic of China — also known as the “U-shaped line,” the court deemed that China’s claim to historic rights within that line are without lawful effect. This ruling was based on the Philippines’ accusations, not on any official claim by China to have historic rights within the “nine-dash line.”
Until now, Chinese authorities have not published any official written declaration concerning the nature of the maritime territory within the “nine-dash line.” Instead, it has been Chinese academics who claim that China has historic rights within the line.
How can a court make judgements based on claims by academics? In fact, the court made judgements about unproven claims by academics who do not represent official authorities, which shows that the judges failed to adequately distinguish the admissibility of the evidence submitted.
Concerning the status of islands and reefs, some of the court’s opinions are well worth discussing.
First, the arbitrators found that what they called small-scale historic use of the Spratly Islands (Nansha Islands, 南沙群島) by fishermen and Japan’s short-lived fishing and fertilizer extraction activities were all temporary uses that could not give rise to stable human habitation. Accordingly, the judges ruled that the Spratlys are not entitled to exclusive economic zones (EEZs).
However, this interpretation overlooks the historical fact that Chinese fishermen have been active there for hundreds of years — hardly a short-lived economic activity. Chinese fishermen sailed there to catch fish and gather other marine resources, and by digging wells on the islands they were able to live there for extended periods.
Itu Aba (Taiping Island, 太平島), Thitu Island (Jhongye Island, 中業島) and Spratly Island (Nanwei Island, 南威島) are among the islands on which wells dug by Chinese fishermen can be found.
Second, the Spratlys are spread over a very wide area. If one draws a line 200 nautical miles (370km) west of the Philippines’ Palawan Island, the following islands fall within it: Gaven Reef (Nansyun Reef, 南薰礁), Mischief Reef (Meiji Reef, 美濟礁), Subi Reef (Jhubi Reef, 渚碧礁) and Fiery Cross Reef (Yongshu Reef, 永暑島), all of which are occupied by China; Itu Aba, occupied by Taiwan; and Sandy Cay (Duncian Shajhou, 敦謙沙洲), Namyit Island (Hongsiou Island, 鴻庥島), Sin Cowe Island (Jinghong Island, 景宏島) and Pearson Reef (Bisheng Island, 畢生礁), occupied by Vietnam.
However, Northeast Cay (Beizih Reef, 北子礁), occupied by the Philippines, Southwest Cay (Nanzih Reef, 南子礁), occupied by Vietnam and Swallow Reef (Tanwan Reef, 彈丸礁), occupied by Malaysia, lie outside this area.
Thus, many of the islands and reefs in the Spratly archipelago are not within the Philippines’ EEZ, nor are all the islands and reefs that the judges deem to be claimed by China.
Third, when the arbitrators ruled that certain areas containing islands that China claims are within the Philippines’ EEZ, on the basis of which Philippine law did they determine that its EEZ extends to the Spratlys?
Are they indirectly acknowledging that the basepoints chosen in the Philippines’ 2009 Republic Act No. 9522, known as the Philippines Baselines Law, meet UNCLOS standards?
The Philippines Baselines Law does not say its EEZ extends to the part of the Spratlys occupied by the Philippines, which it calls the Kalayaan Island Group. Section 2 of the law calls the Kalayaan group a “regime of islands.” The Philippines has not defined this “regime of islands” or clearly legislated whether it has an EEZ.
Fourth, the tribunal determined that China’s activities within the Philippines’ EEZ violated Manila’s sovereign rights. These activities include interfering with Philippine fishing and petroleum exploration, constructing artificial islands and failing to prevent Chinese fishermen from fishing in the zone.
This opinion is clearly a judgement on territorial jurisdiction, because only if the islands and reefs located within the Philippines’ EEZ are determined to belong to the Philippines can it be that no nation other than the Philippines has the right to catch fish, drill for petroleum or build artificial islands there.
Regarding the Scarborough Shoal (Huangyan Island, 黃岩島), the tribunal concluded that both Philippine and Chinese fishermen have traditional fishing rights there, yet it said China “violated its duty to respect the traditional fishing rights of Philippine fishermen by halting access to the shoal.”
As such, the judgement contradicts its previous statement about China’s lack of legal basis for its claimed historic rights in the sea areas falling within the “nine-dash line.” The waters around Scarborough Shoal lie within the “nine-dash line” claimed by China.
How can the tribunal on one hand say that China cannot claim historical rights within the “nine-dash line,” while on the other saying that both Chinese and Philippine fishermen have traditional fishing rights around the Scarborough Shoal?
The hardest part of the judgement for the international community to accept is the part about the Spratlys and Itu Aba. The tribunal said it based its decisions on information including the testimony of an expert hydrographer, archival materials and historical hydrographic surveys. This information was provided by three academics from the Philippines. The tribunal also referred to publicly available materials from Taiwan.
Based on this evidence, the tribunal concluded that all of the high-tide features in the Spratlys, such as Itu Aba, Thitu, West York Island (Siyue Island, 西月島), Spratly Island, Northeast Cay and Southwest Cay, are legally “rocks” that do not generate an EEZ or continental shelf.
The rationale given is that these geographic features are incapable of providing the basic requirements for human life. However, as recorded in various historical documents, Chinese fishermen have been catching fish in the Spratlys for a very long time, so these fishing and fish-trading operations are not a short-lived economic activity.
The Philippines proposed eight reasons for saying Itu Aba cannot be called an island. Of these, the arguments that Itu Aba has no indigenous population, that only military personnel live there and that there was no military occupation until World War II have no bearing on its definition as either an island or a rock.
As to the other arguments, Article 121(3) of the UNCLOS only mentions “rocks which cannot sustain human habitation or economic life of their own,” without stipulating any particular number of inhabitants.
Even if there were only a few dozen fishermen on Itu Aba, they obtained water, fish and vegetables from the island, where many kinds of plants grow and vegetables can be cultivated, and they sold the fish, sea cucumbers and shellfish they harvested to Hainan Island (海南島) in China.
Therefore, Itu Aba can clearly sustain the habitation and subsistence of a small number of people, and, according to the tribunal’s opinions, this is sufficient for Itu Aba to be called an island.
If the population grew to 100 people and Itu Aba’s natural resources could no longer meet the needs of the growing population, the question arises of whether it can therefore be downgraded to a “rock.”
Take Singapore as an example. When the British landed on Singapore in 1819, only 210 people were living there. At the time, that small number of people could live off the island’s water, plants and animals, so the Singapore of that time could be called an island.
However, by last year, Singapore’s population had grown to 5.8 million. Could the inhabitants of Singapore continue to survive by relying only on its natural geographical conditions? The city-state now needs to import drinking water and food from outside and has even had to increase the island’s area by reclaiming land.
According to the tribunal’s judgement, this dependency on resources brought in from outside means Singapore no longer meets the necessary conditions to be defined as an island and should instead be called a rock. The same would be true of Hong Kong and Macau, among other places.
The Philippines’ representatives also argued that Japan’s mining operations on Itu Aba were unsuccessful and that the presence of people there had been in the form of military occupation, therefore it was still an uninhabited land feature.
Starting in 1918, the Japanese extracted guano from the Spratlys. These operations temporarily ceased because of a worldwide economic depression in 1929, but restarted in 1938.
“Unsuccessful economic operations” and “inability to sustain basic human economic life” are not synonymous, so why did the judges accept this part of the Philippines’ testimony?
As to whether Japan’s occupation of the Spratlys in 1939 was purely military in nature, the representatives’ accounts also did not match historical facts. In 1939, Japan placed the Spratlys under the jurisdiction of Taiwan’s Takao Prefecture. It stationed an administrative chief, police officers and meteorological personnel on Itu Aba, while there was a civilian presence in the form of miners and fishermen, adding up to more than 100 people. Japan stationed police there, because the islands were under civil rather than military administration.
The representatives further said that this year, in order to “aggrandize” Itu Aba’s status as a marine feature, Taiwan registered one resident as living there. This argument also does not match with the facts. In 1980, Itu Aba had eight registered residents and in 1990 it was placed under the administration of Kaohsiung, having been under military jurisdiction before that.
The Philippines said there were two ways for the tribunal to avoid threats to peace: Find Itu Aba to be a rock, or “enjoin both parties, pending agreement on delimitation, from exercising any rights in respect of any feature in the Spratly Islands beyond 12 [nautical miles].”
For the representatives to argue that if Itu Aba were not found to be a rock it would cause a threat to peace sounds as if they were pressuring the court and intimidating it to accept their testimony. Could an objective and impartial court permit this kind of testimony?
The arbitrators were also unfamiliar with the conditions on Itu Aba. They listened to inaccurate information provided by the Philippines’ representatives and made dubious judgements. Clearly, they failed to adhere to the principle of reliance on evidence.
The tribunal’s judgement is badly flawed, full of distortions, bias, unfairness and carelessness and marred by a failure to properly examine the evidence. The arbitrators completely accepted the Philippines’ one-sided narrative and failed to objectively and impartially judge the arguments of all parties.
More seriously, the judgement is self-contradictory and involves political standpoints and questions of territorial jurisdiction. The Philippine representatives also threatened the arbitrators.
Considering all these problems with the judgement, it is unlikely to be seen as an internationally respected standard for adjudication.
Chen Hurng-yu is a professor at the Graduate Institute of Asian Studies at Tamkang University.
Translated by Julian Clegg and Paul Cooper
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