The case of
the century, a turning point in the East Sea
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.
By its ruling,
the PCA rejected 2 of the 3 aspects that Chinese scholars often used to
justify the nine dotted line.
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, VietNamNet Bridge
|
Thứ Ba, 19 tháng 7, 2016
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