By Nguyen Ba Son
On July 12, 2016, the arbitral
tribunal in the South China Sea arbitration case instituted under Annex VII of
the United Nations Convention on the Law of the Sea (UNCLOS) between the
Philippines and China handed out its final Award. It has been widely reported
that the Philippines with this Award has scored a sweeping victory against
China with regard to the latter’s maritime claims in the South China Sea. But
describing this arbitration as a fight in which there is a winner and a loser
belies the function of the dispute settlement system of UNCLOS. Nor does such a
view properly appreciate the significance of the Tribunal’s ruling in the South
China Sea disputes as well as its contribution to future cooperation in the
interest of peace and prosperity in the region and beyond.
Authoritative Answers to
Critical Legal Questions
As the Tribunal correctly
observes, “[t]he root of the disputes […] lies not in any intention on the part
of China or the Philippines to infringe on the legal rights of the other, but
rather […] in fundamentally different understandings of their respective rights
under the Convention in the waters of the South China Sea.”
Indeed, most of the
Philippines’ 15 submissions placed before the Tribunal boil down to two key
legal issues that have long bewildered international lawyers. These issues can
be framed in two interrogative sentences as follows: “Is China’s claim to
historic rights in the South China Sea compatible with UNCLOS so that it can
exceed the limits of China’s maritime entitlements under the latter?” and “Can
the tiny features in the Spratly Islands be classified as ‘fully entitled
islands’ capable of generating an exclusive economic zone and continental shelf
of their own?” To these closed questions, the respective “yes” and “no” answers
by China and the Philippines have necessarily pitted them against each other.
It is against that background
that one should perceive the purpose of UNCLOS dispute settlement system.
Indeed, the very idea of a compulsory binding dispute procedure under UNCLOS —
of which Annex VII arbitration is, in the absence of the parties’ decision to
the contrary, the default mechanism — arose from a realistic awareness
that states parties might possibly hold irreconcilable views in their
interpretation and application of this treaty, such that a decision by a third
party would be necessary, if not inevitable. Annex VII to UNCLOS also expressly
addresses the situation of non-participation by one of the parties to the
arbitration and provides that such non-participation will not constitute a bar
to the proceedings.
The Tribunal in the South
China Sea arbitration progressed exactly as designed and accomplished precisely
what UNCLOS negotiators envisioned, a testimony to the effectiveness of UNCLOS
dispute settlement system. Most importantly, the Tribunal has given useful
answers to critical legal questions concerning the source and limits of
maritime entitlement in the South China Sea. The Tribunal’s decision is
authoritative, all the more so because it was reached unanimously with
meticulous reasoning by five eminent law of the sea experts.
Compliance and Recognition
The Tribunal, in its July 12
2016 Award, approved the Philippines’ arguments, declaring “that […] China’s
claims to historic rights, or other sovereign rights or jurisdiction, with
respect to the maritime areas of the South China Sea encompassed by the
relevant part of the ‘nine-dash line’ are contrary to Convention and without
lawful effect to the extent that they exceed the geographic and substantive
limits of China’s maritime entitlements under Convention.” The Tribunal also
found “that none of the high-tide features in the Spratly Islands generate
entitlements to an exclusive economic zone or continental shelf.”
China, as expected,
immediately decried the decision of the Tribunal just as it had done for months
before. But irrespective of what China has argued, as a matter of law – and
this is enshrined under UNCLOS and emphasized by the Tribunal itself – the
Award is final and must be complied by the parties in good faith. It is also
worth pointing out that the various arguments that China has repetitiously made
so far in order to denounce the legitimacy of the arbitration proceeding have
been fully addressed and persuasively rejected by the Tribunal.
Yet, there remains much
skepticism about China’s possible compliance with the Award. The reason is
twofold: China’s apparently fierce reactions to the arbitration and
consequently the lack of a mechanism to deal with China’s possible
non-compliance. While the former is not necessarily true in the long term, the
latter to some extent misses the point.
So far, China has
unrelentingly spoken in defiance of the Tribunal’s ruling. Should such an attitude
have been translated into actions after the issuance of the Award, it would
have indeed given rise to concern not only about peace and stability in the
region but also about the rule of law in international relations. On the other
hand, the very attitude of China toward to the arbitration amply demonstrates
that China does care about the result of this arbitration and its subsequent
impact on China’s future conduct. Otherwise, why does it not simply ignore the
proceedings altogether? That the Tribunal disagreed with China on many issues
has clearly upset Beijing.
From that perspective, China’s
uproar is understandable. But as Jerome A. Cohen, a veteran specialist in
Chinese law and politics, has observed, “China’s foreign policies and legal
positions are not written in stone.” To this, one may add, China could sooner
or later recognize the benefits of this arbitration and accordingly revise its
long-held policy and positions in the South China Sea disputes. Of course, it
may take some time for China to do so—just as in a domestic context, if an
analogy were to be drawn, legislative amendments are not something that can
happen overnight. The optimistic view of possible change in China’s behavior
and conduct in the South China Sea is gaining more traction given the fact that
China has been very careful not to take new provocative and escalatory acts on
the ground.
That said, the Award is
alleged to serve no more than a Pyrrhic victory for the Philippines given the
lack of an enforcement mechanism. Such a realist view has long been discarded
by generations of international lawyers. In the particular case of the South
China Sea arbitration, that view misunderstands the significance of UNCLOS
which, famously dubbed “a Constitution for the Oceans,” defines comprehensively
the rights and obligations of states in different areas of the sea. Given the
fact that activities at sea, in the nature of things, necessarily impinge upon
each other, it is essential for every state to act within the bounds drawn by
UNCLOS should the order in the oceans be preserved.
The final Award by the
Tribunal authoritatively declares the limits of rights and obligations that
China and the Philippines enjoy under UNCLOS, thus becoming an objective
yardstick by which activities of these two parties, or for that matter of all
states, in the South China Sea will be gauged. As such, the Award not only is
technically binding upon the Philippines and China but also has practically erga
omnes effect—it is recognized by virtually all states. In this regard,
it is notable that the finality and binding nature of the Award has not been
impugned by any country, except China. No country, regardless of how big or
powerful it is, can undo this fact.
At the end of the day, it will
be in the interest of China as well as other states that international
obligations are honored. China’s compliance vel non with the
award will be a litmus test of its avowed commitment to upholding international
law, including UNCLOS, and to maintaining peace and stability in international
relations. Compliance will help ensure a predictable and stable legal order in
the South China Sea, which boasts important natural resources for the
development of the coastal states and facilitates the movement of over 50
percent of the world’s merchant fleet tonnage.
Prospects for Future
Cooperation
The Tribunal, somewhat
modestly, stated that “the purpose of dispute resolution proceedings is to
clarify the Parties’ respective rights and obligations and thereby to
facilitate their future relations.” But the Award, as has been demonstrated,
transcends the ambit of the bilateral disputes between the Philippines and
China and has significant implications for future prospect of the region.
Indeed, by rendering
unambiguous answers to various thorny questions, the Tribunal has, in no small
measure, untangled the South China Sea disputes. A new legal landscape in the
South China Sea has emerged with much greater clarity in terms of the maximum
extent of the coastal states’ maritime entitlements. In the wake of the
arbitration, the maritime zones of the Spratly Islands, which are disputed by
virtue of the unsettled sovereignty question, are limited to the territorial
seas of the high tide features. It follows that the coastal states now
confidently enjoy full exclusive economic zones and continental shelves in the
relevant parts of the South China Sea as established under UNCLOS.
Beyond the limits of the
coastal states’ national jurisdiction will be the high seas where every state
enjoys certain freedoms as provided under UNCLOS. The question of whether the
seabed in the center of the South China Sea will become part of the area
subject to the regime of common heritage of mankind will depend on the future
submissions by the coastal states regarding their respective extended
continental shelves.
The upshot is particularly
important to determine the nature and scope of permissible activities in the
South China Sea that states can engage in under UNCLOS as well as to inform
future cooperation in the region. In the immediate future, the Award will shed
light on the implementation of the Declaration on the Conduct of Parties in the
South China Sea and the negotiations of a future Code of Conduct by ASEAN and China.
In the longer run, with more clearly defined extent of their respective
maritime rights and interests in the South China Sea, the coastal states should
embark upon other cooperative endeavors, which may involve states outside the
region and international organizations, in order to address the closely
integrated issues in this semi-enclosed sea as mandated under UNCLOS.
With that, one cannot but
accept the influence that the Tribunal has had on the future development of the
South China Sea. It is now up to states to recognize this and implement the
Award in good faith.
Nguyen Ba Son, PhD, is a
lawyer based in Ho Chi Minh City, Vietnam, practicing public international law
and international commercial law. He thanks his colleagues and friends for
their help and assistance in writing this article. The views expressed here are
his own and do not necessarily reflect the positions of any institution he was
or has been associated with.
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