VietNamNet Bridge – The arbitration case brought by the Philippines against China’s nine-dash line claims in the East Sea (internationally known as the South China Sea) ended with the ruling of the Permanent Court of Arbitration (PCA) constituted under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS) on July 12. We can call it a case of history for many reasons. For the first time in its history, China - "the world’s center"– was unilaterally sued by a small country in a marine dispute.

The East Sea dispute is complex, involving many parties, most concerned by many others. For the first time the PCA had to answer and explain in detail Article 121.3 of the UNCLOS and thereby contributing to the development of international law.

The ruling not only affects the Philippines and China but also affects many countries inside and outside the region, the process of implementation and development of maritime law and international law. After 17 years of failed bilateral negotiations, 3 years of performing procedures for the case, the ruling made on July 12th is considered beneficial to the Philippines.

China has pursued the three-no policy: not recognizing the jurisdiction of the PCA, not involving in the case and not accepting the ruling.

The closer the day of ruling making came, the faster and stronger China took actions. It launched a propaganda campaign which built China’s image as a victim of a legal-political conspiracy. This might be the reason for the PCA to extend the time to announce the ruling to have an objective verdict.

The ruling has played an important role in affecting the political, security, economic situation of the countries in the East Sea region, to internal solidarity of ASEAN, to Sino-US competition and to the foreign policy of the countries having interests in the East Sea. The ruling is also the test of the credibility of international law, the respect and goodwill of the parties in the implementation of the law. The unintended effect of the ruling will also impact on many generations.

The Philippines made 15 submissions to the PCA on the basis of interpretation and application of the UNCLOS. This country invited a team of reputed international lawyers, prepared 4,000 pages of documents to submit to the PCA in the first hearing and additional 3,000 pages in the 2nd hearing.

The content of these submissions focused on three main issues: 1) the validity of the nine-dash line claim of China in the East Sea; 2) the legal status of some features, islands, rocks, shoals in Truong Sa Archipelago (Spratly Islands); 3) the behavior of China that the Philippines considered unsuitable to the UNCLOS and damaging the rights of the Philippines defined by the UNCLOS and the marine environment.

China refused to join the case with the reasons: 1) the true nature of the dispute between China - the Philippines is the issue of sovereignty that the PCA has no jurisdiction over; 2) the submission of the Philippines as defining regulations of features related to maritime delimitation was eliminated by China's reserves in 2006 to Article 298 of the UNCLOS; 3) the Philippines did not comply with the commitments between the two countries, the ASEAN - China Declaration on the Conduct of Parties in the East Sea, the Treaty of Amity and Cooperation in Southeast Asia, the Biodiversity Treaty ... on solving disputes by bilateral negotiations rather than the intervention of a third party.

China’s documents were carefully scrutinized by the PCA. The tribunal convened a hearing on jurisdiction and admissibility in July 2015 and rendered an Award on Jurisdiction and Admissibility on 29 October 2015, deciding some issues of jurisdiction and deferring others for further consideration.

The tribunal rejected the arguments of China and acknowledged that it had the jurisdiction in 7/15 submissions made by the Philippines. For the others, the PCA would determine its jurisdiction when considering the content.

The ruling announced on July 12 with 501 pages affirmed that the PCA had the jurisdiction over the entire 15 submissions made by the Philippines and gave answer to each submission.

The jurisdiction

In addition to the arguments announced in the Award on Jurisdiction and Admissibility dated October 29th 2015, the PCA continued to consider the exceptions that reserves in 2006 of China to Article 298 of the UNCLOS may hinder its jurisdiction.

The PCA said that the exception in Article 298 can only be applied if the Philippines’ submissions concerning law enforcement activities in the exclusive economic zone of China. However, as the Philippines’ submissions are relating to the events taking place in the exclusive economic zone of the Philippines or in the territorial waters, Article 298 does not hinder the PCA’s jurisdiction.

The Tribunal also considered whether the Philippines’ submissions were affected by the exception from jurisdiction in Article 298 for disputes concerning military activities. The Tribunal considered whether China’s land reclamation and construction of artificial islands at seven features in the Spratly Islands constituted military activities, but noted that China had repeatedly emphasized the non-military nature of its actions and had stated at the highest level that it would not militarize its presence in the Spratlys.

The Tribunal decided that it would not deem activities to be military in nature when China itself had repeatedly affirmed the opposite. Accordingly, the Tribunal concluded that Article 298 did not pose an obstacle to its jurisdiction.

The meaning of this conclusion of the PCA is that the value of unilateral acts of countries, especially from the senior leaders, will create additional resources for international law and they are binding. Based on the analysis of the both rulings, the PCA declared itself competent enough to consider the major content of the submissions from the Philippines.

The nine-dash line

Because China did not explain and its claims are vague and unclear, the PCA used the method of elimination to determine the most common parts between the Philippines’ submissions and the claims of China that it has jurisdiction over.

The tribunal affirmed not considering the issue of sovereignty of the features within the nine-dash line. The PCA carefully reviewed the historic rights concept, a concept that can bring sovereignty to the claimant and this country has the duty to prove it. This concept is mentioned in Article 15 of the UNCLOS, relating to delimitation of the territorial waters. Historic right consideration is limited by China’s reserves in 2006.

But China has never proven the legal nature and scope of the historic rights that it claims. China's claims - in addition to claims of sovereignty over the islands and adjacent waters - are also claims of "legitimate rights in the East Sea, which were formed during the long history". The vagueness, ambiguity in the statements made by China cannot prove their historic rights.

The tribunal clearly analyzed what China, through its different acts and claims, claims is the historic rights to resources within the nine dash line. This right is not tied to the concept of historic title or the historic gulf.

The historic fishing rights were discussed by countries, including China during the 3rd conference on the Law of the Sea and were not accepted into the UNCLOS. China’s claims for historic rights to biological and non-bio resources within the nine-dash line is inconsistent with the UNCLOS, meaning that it is beyond the waters under the UNCLOS provisions.

The historic rights, if they have, are not consistent with the new water institutions of the UNCLOS when it took effect and therefore do not exist.

On the other hand before the UNCLOS took effect and the exclusive economic zone became an institutional nature of international practices, the waters beyond the territorial waters of 12 nautical miles were the high seas. All fishing activities of Chinese fishermen and fishermen of other countries were practicing their freedom of fishing, not historic right. Historic maritime and fishing activities outside the territorial waters, therefore, could not create the basis for the formation of historic rights.

The PCA determined that although the Chinese navigators and their fishermen, such as those from other countries, had been used the features in the East Sea in history, there is no evidence that China has historically implemented exclusive control over the waters or resources. So with the submissions number 1 and 2 of the Philippines concerning the legal validity of the nine dotted line, the PCA said "there is no legal basis to assert this country (China) has a historic right to the resources, in accordance with the rights provided by the UNCLOS 1982, in the sea area within the nine dotted line."

By this statement, the PCA rejected 2 of the 3 aspects that Chinese scholars often used to justify the nine dotted line; the claims of historic rights of traditional fishing and claims of waters. Only the claims of sovereignty over the features within the nine-dotted line, which the PCA does not have jurisdiction over.

The status of features in the Spratlys and Second Thomas Shoal

The Philippines specifically mentioned only 7 features. The Tribunal agrees with the Philippines that the Johnson South Reef, Cuarteron Reef, Fiery Cross Reef and Scarborough are high-tide features; Subi Reef, Hughes Reef, Mischief Reef, and Second Thomas Shoal were submerged at high tide in their natural condition. However, the Tribunal disagreed with the Philippines regarding the status of Gaven Reef (North) and McKennan Reef and concluded that both are high tide features.

The Tribunal interpreted Article 121 and concluded that the entitlements of a feature depend on (a) the objective capacity of a feature, (b) in its natural condition, to sustain either (c) a stable community of people or (d) economic activity that is neither dependent on outside resources nor purely extractive in nature.

The Tribunal noted that many of the features in the Spratly Islands are currently controlled by one or another of the littoral States, which have constructed installations and maintain personnel there. The Tribunal considered these modern presences to be dependent on outside resources and support and noted that many of the features have been modified to improve their habitability, including through land reclamation and the construction of infrastructure such as desalination plants.

The Tribunal concluded that the current presence of official personnel on many of the features does not establish their capacity, in their natural condition, to sustain a stable community of people and considered that historical evidence of habitation or economic life was more relevant to the objective capacity of the features.

Accordingly, the Tribunal concluded that all of the high-tide features in the Spratly Islands are legally “rocks” that do not generate an exclusive economic zone or continental shelf.

This is an important decision not only for the East Sea but also for the East China Sea, the disputes over Diaoyu Islands, Tokto islands, Riukyu archipelago and other rocky islands dispute when Article 121 is applied. It confirms the Tribunal's role in minimizing disputes and seeking solutions for international peace and stability. However, China may reject by saying that the Tribunal exceeded its jurisdiction and settle out the issues out of the Philippines’ submissions.

The Tribunal also held that the Convention does not provide for a group of islands such as the Spratly Islands to generate maritime zones collectively as a unit. This prevents any future attempts to establish straight baselines for the Spratlys as a single feature such as China did with the Paracels in 1996.

The activities of China in the East Sea

Having found that the features in Spratly Islands have the surrounding waters of only 12 nautical miles, the Tribunal came to the conclusion that there is no overlap of the exclusive economic zones of the Philippines and China in the Spratly.

The Tribunal found as a matter of fact that China had interfered with Philippine petroleum exploration, purported to prohibit fishing by Philippine vessels within the Philippines’ exclusive economic zone, protected and failed to prevent Chinese fishermen from fishing within the Philippines’ exclusive economic zone. The Tribunal therefore concluded that China had violated the Philippines’ sovereign rights with respect to its exclusive economic zone and continental shelf.

The Tribunal also considered the effect of China’s actions on the marine environment. In doing so, the Tribunal was assisted by three independent experts on coral reef biology who were appointed to assist it in evaluating the available scientific evidence and the Philippines’ expert reports.

The Tribunal found that China’s recent large scale land reclamation and construction of artificial islands at seven features in the Spratly Islands has caused severe harm to the coral reef environment and that China has violated its obligation under Articles 192 and 194 of the Convention to preserve and protect the marine environment with respect to fragile ecosystems and the habitat of depleted, threatened, or endangered species.

The Tribunal also found that Chinese fishermen have engaged in the harvesting of endangered sea turtles, coral, and giant clams on a substantial scale in the East Sea, using methods that inflict severe damage on the coral reef environment. The Tribunal found that Chinese authorities were aware of these activities and failed to fulfill their due diligence obligations under the Convention to stop them.

Viet Long

To be continued…