SOUTH CHINA SEA: AN INTRODUCTION TO
THE DISPUTES AND THE ROLE OF INTERNATIONAL LAW
27 November 2014
I am very honoured to have been invited to give the annual address in memory of Justice Richard Cooper. Although I do not recall having appeared before Justice Cooper, he was known throughout Australia for his deep knowledge of maritime law and as a leading member of Australia’s admiralty courts. Justice Cooper was born in Sydney, but was swiftly lost to New South Wales. His legal studies were at the University of Queensland. His career took him to the Queensland Bar, to the Commonwealth Attorney-General’s Department, the London Bar, back to Queensland and ultimately to the Supreme Court of Queensland and thence the Federal Court.
His Honour had a consistent focus upon issues of maritime law, both in practise and as a visiting lecturer at the University of Queensland. He was deeply engaged in law reform in admiralty, and many of his reforms continue with us today. He was also widely known for his interests in native title law and indigenous issues, but those are topics for another day.
It is an honour to give this speech in his memory.
My talk tonight is entitled Atolls and Arbitrations. Given the level of tension, the competing claims to insignificant land features and the lack of principled approach, it could perhaps have been described as the South China Sea on the Rocks.
My intention is to go behind the headlines and draw attention to the nature of the existing disputes, their true significance and to consider what, if any, prospects exist for the accepted rules of international law to resolve the disputes.
The South China Sea is in the news weekly, if not daily. It is usually described as being as ‘at flash point’ or some similar description. Much of the media coverage focuses upon China’s claims, and more frequently, the actions of China and her navy which serve to remind neighbouring States of the regional balance of power. However the disputes are in fact overlapping and complex, involving all of the regional states. Importantly, although China is always described as being at the centre of the disputes, in fact they encompass a number of overlapping claims that do not involve China at all. Simply by way of example, each of China, Vietnam, Taiwan, the Philippines, Malaysia and Brunei lay claim to parts of the Spratly island chain, and each claims extensive exclusive economic zones from islands in that chain, with those claimed maritime zones overlapping and intersecting.
However, because of the sheer breadth of claims made by China, it is necessary for those claims to be resolved before, or at least at the same time as, any resolution of the other overlapping claims.
First, some background to the disputes. The focus of most attention regarding the South China Sea resources has been on hydrocarbons in general, and oil in particular. Oil deposits have been found in the land territory of many of the states adjacent to the waters of the South China Sea. The South China Sea region has proven oil reserves and some existing oil and gas production (largely involving Malaysia and the Philippines). Oil has also been discovered near Vietnam and near Hong Kong. For example, Shell operates the Malampaya gas platform located off shore the Philippines in a joint venture with Chevron and the Philippine National Oil Company (PNOC).
However, there is much more to the strategic claims in the area than the possibility of oil and gas resources.
In particular, the area also has a great strategic value because it represents a major shipping route through which much of the world’s maritime cargo travels.
It has been estimated that more than half of the annual merchant fleet tonnage passes into the South China Sea every year. Almost all of that shipping passes close to the disputed Spratly Islands, which I will discuss shortly. Cargo includes a substantial tonnage of crude oil and Liquified Natural Gas, including crude oil from the Persian Gulf. The United States uses the South China Sea to access the Persian Gulf region.
Whilst expert analysts have reckoned it unlikely that the disputant states would engage in activities that affected the shipping lanes, that position cannot be assumed, and any substantial military activity in the region would undoubtedly lead to very grave economic consequences for much of the world.
Some of the risk comes from the uncertainty of delimitation of maritime zones in the South China Sea in that territorial seas are claimed around features that may not be entitled to them, and the delimitation of exclusive economic zones around rocks, islands and atolls in the region is uncertain. There are serious questions about the extent to which China, in particular, is prepared to extend full high sea freedoms to foreign naval vessels within her claimed Exclusive Economic Zones.
Military vessels of all nations have been involved in incidents which seem to be inconsistent with the rules of free passage. One such example arose in March 2009 which the US vessel Impeccable was confronted by a number of Chinese vessels near Hainan Island, which is within China’s claimed Exclusive Economic Zone. The Impeccable was alleged to have been engaged in intelligence gathering activities, a fact which the US Navy subsequently conceded. However, the US claimed, correctly, that the vessel was within international waters and did not require the consent of the coastal state to operate. The Impeccable was subsequently provided with an escort of a destroyer, and has continued working in the area.
Other incidents have been recorded involving Chinese vessels impeding the fishing activities of foreign flagged vessels in disputed areas of the South China Sea. Although to date there has been no overt interference with the shipping trade (although acts of piracy are not infrequent), the tensions are real and little would be required to lead to a serious incident with grave consequences.
At the ASEAN conference in Hanoi in July 2010, Hilary Clinton declared that freedom of navigation in the South China Sea was a “national interest” of the United States, and that “legitimate claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features,”
It should also be noted that the South China Sea is a vital fishery resource for the coastal states in the region. The region is heavily populated (with almost half a billion people estimated to live within 100 miles of the coast of the South China Sea). The population relies heavily upon fish as a primary source of protein.
As I will discuss in a moment, fisheries disputes have become the most frequent source of tension in the region, involving hostile interactions between vessels engaged in fishing activities within the areas of the South China Sea claimed by China.
Finally, of course, there is another rationale for the disputed claims to the region: the possibility of significant reserves of oil and gas. There has, until recently, been very little in the nature of exploration in the disputed areas, and even less has been found by way of proven reserves in those disputed areas.
However, because oil and gas reserves have been found in some coastal areas (particularly adjacent to the Philippines), there has been widespread speculation to the effect that the South China Sea has untapped riches. Until recently, scientists had considered the prospective areas to be quite small, as most of the regional seabed seems to lack the essential characteristics to be seriously prospective.
Recently, there have been some developments. Earlier this year, a joint expedition with scientists from 12 countries, including China, the United States, Vietnam, the Philippines and Taiwan conducted some limited drilling in the deeper sections of the South China Sea. One participating scientist has said that evidence was found that there were “huge” oil and gas reserves beneath the sea.
“Our expedition discovered thick organic rich sandstone and shale at the outermost continental margin and the continent-ocean transition zone, further supporting the large potential for oil and gas reserves”
In May, Beijing made its interest in those resources clear when it sent the drilling rig Haiyang Shiyou 981 into waters claimed by Vietnam offshore the Paracel Islands. The rig is owned by China National Offshore Oil Corporation, or Cnooc, the country’s biggest offshore energy producer. According to an announcement by the Hainan Maritime Safety Administration of China, the drilling work of Haiyang Shiyou 981 would last from May 2 to August 15, 2014. However on July 15, China announced that the platform had completed its work and withdrew it fully one month earlier than originally announced.
Subsequently, China has announced that the Haiyan Shiyou had completed test drilling in an area south of Hainan, n an area not the subject of dispute, and had discovered enormous LNG reserves at a water depth of 1,500m.
The United States Energy Information Administration has estimated that 11 billion barrels of oil and 190 trillion cubic feet of natural gas lie below the seabed, including both proven and probable reserves. If those estimates prove correct, the South China Sea would be in the same league as Mexico, a midsize producer, and in the global top 10 in terms of gas.
So in light of that background, we can turn to consider some of the individual disputes in the region.
The main areas of the disputes can be seen on this slide. It can be seen that the Spratly Islands are close to Philippines and Vietnam and Brunei, and seem on the map to be quite a long way from China. The Spratlys are the subject of disputes between Vietnam, China, Taiwan, Brunei, Malaysia, and the Philippines.
The Philippines, China, and Taiwan have claims over the Scarborough Shoal – these disputes are amongst the most contentious in terms of military activity at the moment.
The Paracel Islands are disputed between the two Chinas and Vietnam.
There are also claims involving Malaysia, Cambodia, Thailand and Vietnam over areas in the Gulf of Thailand.
The starting point should be China’s claims, by which I mean the PRC. Taiwan (ROC) maintains parallel claims to mainland China. Taiwan’s maritime claims are subservient to and dependent upon its status as a state.
China has a nebulous and ambiguous claim to the area of the South China Sea and the land masses within it. It is very unclear, even today, whether China seeks to claim all of the waters of the South China Sea, or whether China merely claims certain land territories within the area, with subsequent dependent maritime claims in the nature of territorial seas, EEZ and continental shelf claims.
China seems reluctant to articulate the precise legal basis for its claims. What is known is that it asserts historical title to certain island features, and it also asserts some unstated form of title to waters within a line on a map.
The nine dash line is a sketched series of ‘dashes’ on a map.
The line originally consisted of eleven dashes, and was apparently first published by the Kuomintang Government of the PRC in 1947.
The line was revised in 1949 by removing two dashes and therefore became known as the nine dash line.
In 2014 China added a tenth dash near Taiwan.
As you can see, the 9-dash line is very vague. It certainly does not meet modern standards of geographic precision. It appears to be a representation of a hand-drawn line that simply seeks to enclose most of the South China Sea. China has not at any time articulated the basis of the claim, nor the content of the claim.
Taiwan maintains a parallel claim to the waters within the 9 dash line. However, unlike China which has never fully articulated the extent of its claim, nor the legal basis of it, in a recent exhibition in Taipei, Taiwan put on display some of their archives from 1949. Taiwan’s President stated at the opening of the exhibition that the Nationalist Party in 1947 (before it fled the communist advance) had claimed only the islands and surrounding 3 to 12 nautical miles of their adjacent waters within the 9 dash line.
This matters, because in theory it means the line could be interpreted as compatible with current international law. Under the UN Convention on the Law of the Sea (UNCLOS), “the land dominates the sea”. Land features are entitled to 12 miles of territorial waters; habitable islands have an additional 200 miles of “exclusive economic zone”
It is important to recognise that the dotted lines do not show how the lines would be joined if it was continuous. It is also very hard to ascertain the basis upon which the line was drawn. Certainly at international law a state can not draft a maritime claim internally, assert it on a map, and by bootstraps have it recognised.
More importantly, there seems to be no customary or treaty based foundation for the nine dashed line.
The 9-dash line has been the subject of official protests by Vietnam, Malaysia, Brunei, Indonesia and the Philippines. As I will discuss later, the line is also now challenged in the arbitral proceedings under UNCLOS which have been instituted by the Philippines.
On May 11, 2009, the People's Republic of China (PRC) submitted the preliminary survey findings on the outer limits of its continental shelf to the UN Commission on the Limits of the Continental Shelf (CLCS). The submission makes a claim to an extended continental shelf beyond 200 nautical miles. Perhaps more importantly, China responded to the joint submission made by Malaysia and Vietnam by asserting that it had historic title to the sea bed within the nine dash line.
On 7 May 2009 China submitted a Note to the UN Secretary-General concerning the Joint Submission of Malaysia and Vietnam. It included the following statements:
China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map). The above position is consistently held by the Chinese Government, and is widely known by the international community.
The fact that China attached the 1947 nine dashed line map to its Noteresponding to the Joint Submission of Malaysia and Vietnam was a cause for concern among some members of ASEAN. It was the first time that the PRC had included the map in an official communication to the United Nations.
The Philippines lodged a diplomatic protest against China for claiming the whole of South China Sea illegally. Vietnam and Malaysia filed their joint protest a day after China submitted its 9-dash line map to the UN. Importantly, Indonesia also registered its protest, even though it did not have a substantial claim to the South China Sea.
China appears to be escalating its claims and their enforcement. In June 2012 China created a new administrative government unit that was said to administer sovereignty over the entire area within the 9-dash line. Chinese vessels now routinely challenge foreign vessels within the 9 dash line. China has issued new passports to citizens which include the nine dash line map. A law took effect on 1 January 2013 which apparently requiring inspection expulsion or detention of vessels within the 9 dash line. The Philippines has recorded instances of vessels being boarded and siphoned of fuel leaving just enough to reach land. Of course, if the waters are in fact high seas, this is tantamount to piracy.
The problem for China is that UNCLOS does not recognise historical claims to high seas maritime waters. Nor does historical customary international law. Waters are either territorial seas, or high seas. UNCLOS extends certain additional rights through the EEZ and continental shelf doctrines which give expanded jurisdiction as to natural resources in those areas.
In my view, which is I think also the view of most scholars, the 9-dash line provides an extremely weak basis for an assertion of Chinese sovereignty in the region. To that extent, the rules contained within UNCLOS provide a starting point for the analysis.
However, if the nine dash line can not found a claim to sovereign rights, it is instead necessary to turn to particular land features within the South China Sea, determine sovereignty over those features and then delimit the extent of maritime zones that extend from those features. In other words, the waters follow the land in the sense that the maritime zones flow from legitimate title to land.
Although UNCLOS has no substantial role to play in the resolution of the underlying claims to land title, customary international law, as clarified by decisions of the ICJ, does provide a basis for the determination of claims to land territory.
So, putting to one side the nine dash line, we now have a starting point for analysis, which is first to determine the legal status of land masses within and adjacent to the disputed waters, and then to determine the extent of any legitimate maritime zones (including any extended continental shelf claims) and finally to delimit those maritime zones where they intersect. Immediately it can be seen that this is not a straightforward exercise!
The underlying claims to land title are extremely complex. China claims to have sovereignty over many island features dating back some 500 years ago.
One issue for China is that there appears to have been little effort to exhibit sovereignty, at least until recently, and its claim is to that extent extremely difficult to determine. The position is further complicated by historical events including occupation by Japanese forces during World War II of many islands, followed by the relinquishment of those island features by Japan under treaty following the conclusion of that war.
Again, because UNCLOS does not assist the resolution of the land claims I will not devote more time to the specific claims to title in this paper.
A second issue, which does fall to be determined by UNCLOS, is the characterisation of particular features as either rocks, islands or submerged features. I will address that question in some detail.
In the time available I will address some of the main areas in dispute:
Scarborough Shoal is a grand name given to 6 or 7 small rocks that protrude less than 3m above high water. The largest is said to be 10m wide. Both China and the Philippines claim sovereignty.
The Shoal is about 120nm west of the Philippines.
The acrimonious confrontation over Scarborough Shoal, known as Huangyan Island in Chinese, began in 2012 when Beijing started to assert fishing rights in the area. China prevented the Philippines from fishing , ordered its civilian patrol vessels to stop the Philippines enforcing its fishing rights by arresting Chinese fisherman working in the disputed area and began allowing fishing by Chinese vessels.
The Philippines says the shoal falls within its 200 nautical mile Exclusive Economic Zone (EEZ), giving it the right to exploit the natural resources in this area.
China claims that records show China's sailors discovered Huangyan Island 2,000 years ago and China has cited records of visits, mapping expeditions and habitation of the shoal from the Song Dynasty (960-1279 AD) right through to the modern period.
Scarborough Shoal falls within the nine-dashed line.
The Paracel Islands lie about half way between Vietnam and China.
Vietnam has a major maritime claim in the South China Sea. Vietnam’s claim includes all of the Spratly and Paracel Islands.
The Paracels include actual islands although they do not permit human habitation other than in a supported sense – only military and government officials live there.
Records suggest that there are some Chinese cultural relics in the Paracel islands dating from the years 618 to 1279 and there is some evidence of Chinese habitation on the islands in these periods
Around the mid-19th century, after conquering Vietnam, France subsequently took over and administered the islands on behalf of her colony. In 1930, France claimed the islands on behalf of her protectorate Vietnam.
On January 19, 1974, the Battle of the Paracel Islands occurred between China and South Vietnam. A number of Vietnamese vessels were sunk and 53 Vietnamese sailors and soldiers were killed. After the battle, China gained effective control over the entire Paracel Islands.
In 1979Vietnam’s foreign ministry issued a White paper which set out the historical basis for Vietnam’s claims. Vietnam notes that France in the 1930’s made repeated claims to the Paracels.
In July 2012, China established Sansha City which included the Paracel islands as one of the three townships of the city. The Sansha City prefecture nominally (according to China) has jurisdiction over many of the disputed land masses within the South China Sea. Regulations have been passed purporting to require foreign vessels to seek Chinese permission before entering the territorial waters of those land masses.
Professor Gillian Triggs has suggested that Vietnamese claims may be stronger than Chinese, but the resolution of historical title to the Paracels is likely to be extremely difficult if not impossible given the relatively early discovery, but lack of evidence of occupation and control for many centuries.
The Spratlys are the most complex area of disputed land territory (with dependent maritime claims)
The Spratlys are close to the Philippines, Brunei and Malaysia. They are relatively distant to Vietnam and even further from China.
The Spratlys are an archipelago of 400 odd rocks reefs and small islands.
They are occupied in part by each of Vietnam, the Philippines, China, Malasyia, Taiwan and Brunei.
They are within China’s 9-dash line.
China claims the Spratlys first because they are within the 9 dash line, and secondly because they claim historical occupation. China produced a map of what it described as its historic claims to the Spratlys in 1993. All of the other claimants also point to historical occupation of various features within the islands. Vietnam claims sovereignty over all the features in the Spratly Archipelago. Vietnam has, however, incorporated the whole Spratly Archipelago into its provincial administrative system.
The Philippines do not claim sovereignty over the whole of the Spratly Archipelago but rather a group of islands known as the Kalayaan Island Group which consists of fifty-three features in the eastern South China Sea. Unlike China and Vietnam, the Philippines have published definite geographical co-ordinates showing the features in the area over which it claims sovereignty.
The Philippines’ claim over the Kalayaan Island Group is based on discovery, and to a certain extent on proximity, as well as effective occupation and control.
Malaysia claims sovereignty over eleven features in the Spratly Archipelago. Malaysia has asserted two legal bases for its claims, that these features are found on its extended continental shelf and effective occupation and control
States have also attempted to cement their occupation by building structures on the islands.
In 1988 there was a second military conflict between Vietnam and China at Fiery Cross Reef, leading to 72 Vietnamese deaths and China’s occupation of the reef.
Although some of the Spratlys are properly characterized as islands, many are merely high tide rocks. Many of the structures created in the Spratlys are on concrete stilts. According to the Philippines, all of the features occupied by China are mere rocks for the purpose of Art 121(3). For example, Fiery Cross Reef is no higher than 1m above high tide.
Just for interest, because it has been the subject of a couple of recent documentaries, I will refer to Ayungin Shoal (known to the Western world as Second Thomas Shoal) which lies only 105 nautical miles from the Philippines. It lies at the southwestern edge of an area called Reed Bank, which possibly contains large reserves of oil and natural gas. It is also home to a World War II-era ship called the Sierra Madre, which the Philippine government ran aground on the reef in 1999. Since that time, a small military garrison has been maintained on board the ship.
Resolution of historical title to land masses is only the first step in the application of international law to the disputes. All of the claimant states are parties to the 1982 UNCLOS, and the entitlement to significant maritime zones and continental shelf resources which flow from title to land territory would fall to be determined by the rules of UNCLOS. However, because title to the relevant land masses would be shared amongst some or all of the claimant states, and the maritime zones claimed by those states would frequently intersect, a process of maritime boundary delimitation would be required to determine the limits of those maritime zones.
Notwithstanding these difficulties, it seems to me that international law has a vital role to play, setting the framework within which diplomatic discussions are occurring, and also providing possible pathways to independent dispute settlement.
First, international law provides no basis for the 9-dash line, whether it is intended to enclose waters, or merely all land masses within the line. China, being realistic, must accept that as a matter of international law whatever it says diplomatically.
Next, public international law does provide the basis for the resolution of the underlying territorial claims to land. This involves essentially two questions, first whether or not a particular feature is a rock, and island, or a submerged feature, and then secondly the means and rules for resolving questions of historical title.
Determination of rights to territorial sovereignty is vital to all boundary delimitations for, as the International Court of Justice has reiterated, the rights of a state to the continental shelf and to an exclusive economic zone are based on the principle that the land dominates the sea through the projection of the coast or the coastal fronts”.
In the North Sea Continental Shelf cases of 1969 the Court observed that the land is the legal source of the power which a state may exercise over territorial extensions seaward.
Again in Tunisia/ Libya, the ICJ found that the coast of the territory of the State is the decisive factor for title to submarine areas adjacent to it
Finally, rules of public international law can delimit intersecting and competing maritime zones once the land boundaries are determined.
The first threshold issue is whether the land features within the South China Sea are rocks, islands, or merely submerged features.
The distinction is critical, because the characterisation of the land mass determines the nature and extent of maritime zones that project from it.
Article 121 of UNCLOS provides:
Regime of islands
1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.
Also relevant is Article 13:
1. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide.
2. 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.
In the case of the South China Sea it is entirely clear in my view that many of the features that are claimed constitute low tide elevations, or at best, rocks incapable of sustaining human life. Therefore they are incapable of generating either a territorial sea, or are incapable of generating any exclusive economic zone or continental shelf claims.
Thus if you recall the photograph of the Scarborough Shoal it would seem beyond doubt that it constitutes a mere rock within the meaning of Art 121(3) of UNCLOS:
It follows that in my view the Scarborough Shoal can not sustain an EEZ or continental shelf but it could generate a territorial sea of 12nm.
A similar process of analysis must be conducted for each and every land feature within the South China Sea that is claimed by the competing States.
A difficult question of the interpretation of UNCLOS arises. Several of the land features are clearly above water, but are only capable of sustaining human life by supported and artificial means. Recalling the words of Art 121(3):
“3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”
The question of interpretation is what is meant by “human habitation or economic life “of their own”?
Is a human habitation consisting of a structure on concrete platform or stilts, much like an oil rig, and supported by regular re-supplies, a sustainable human habitation? The better answer is probably not, but as yet there is little to guide us in the question of interpretation.
In the time available I will only mention very briefly the second of the tasks for international law, being the determination of title to territory having first resolved the question of the proper characterization of the territory as rock island or submerged feature. Obviously, general public international law (although not UNCLOS) has relatively well established rules for the determination of land title.
The resolution of the competing claims will require consideration of the concepts of occupation of terra nullius, the requirements of effective occupation in places where there seems to be little evidence of consistent occupation, questions of conquest, re-conquest and cession by treaty at least in the case of Japan. These questions are beyond the scope of today’s lecture but are likely to prove very difficult.
If title to territory could be determined, the ICJ has now developed a relatively sophisticated jurisprudence on the delimitation of competing maritime claims. Despite the extraordinary complexity of the intersection of likely maritime zone claims, the ICJ and other tribunals could be expected to apply the now well-established principles of delimitation as for example described in the Black Sea Case between Rumania and Ukraine.
In summary, the approach now accepted by the ICJ for the delimitation of a single maritime boundary proceeds in three stages. First, the Court establishes a provisional line using geometrically objective lines that are appropriate for the regional geography. An equidistant line will be adopted between adjacent coasts, unless there are compelling reasons to do otherwise. In respect of opposite coasts, a median line will be adopted. These median and equidistant lines are drawn from base points, chosen by the Court, which are dependent upon the physical geography and the most seaward points of the two coasts.
Secondly, the Court will consider whether there are factors calling for adjustment of the provisional line in order to achieve an equitable result. The Court also confirmed its earlier view expressed in the Nicargua v Honduras case that the so-called equitable principles/relevant circumstances method may usefully be applied, as in these maritime zones this method is also suited to achieving an equitable result.
Thirdly, the Court will ensure that the provisional line, as adjusted where appropriate, does not lead to an inequitable result by reason of disproportionality.
Notably, self-serving displays of force will not generally assist. There are of course many displays of power now occurring in the South China Sea, including assertive displays of fisheries control, and it is unlikely that much or any weight would be placed on these factors in any judicial or arbitral determination of rights.
In the Black Sea case the ICJ cited the jurisprudence of the Arbitral Tribunal in the Barbados and Trinidad and Tobago case to the effect that [r]esource related criteria have been treated more cautiously by the decisions of international courts and tribunals, which have not generally applied this factor as a relevant circumstance
Of course, in the case of the South China Sea, there is no obvious pathway to the ICJ, which relies upon voluntary acceptance of jurisdiction.
However in January 2013 the Philippines commenced arbitral proceedings with China under Art 287 of UNCLOS which permits compulsory arbitration of disputes concerning the interpretation, or application of UNCLOS.
Art 287 provides:
1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:
(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with Annex VII;
(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.
3. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII.]
Article 298 of UNCLOS provides for States to make a reservation excluding from dispute settlement limited categories of dispute. Those categories include
“disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles…”
In January 2013 the Philippines made a formal request of China for the arbitration under UNCLOS of a number of questions relating to the South China Sea. The procedure is being governed by Annex VII. The questions framed by the Philippines relate to the validity of the 9 dash line, and the status of various identified land masses as rocks or islands, or submerged features. For example, it seeks declarations that submerged features are not capable of generating a territorial sea. It seeks declarations that land masses incapable of sustaining life other than by way of artificial construction are not islands for the purposes of generating an exclusive economic zone.
China has declined to participate in the process of arbitration at any level. China addressed a Note dated August 1, 2013 to the Permanent Court of Arbitration in which it reiterated its position that “it does not accept the arbitration initiated by the Philippines. The Chinese written submission (or memorial) is due to be filed on 15 December. All indications are that China will not file any written submissions.
Significantly, the Tribunal has jurisdiction to proceed ex parte if it is capable of otherwise satisfying itself of jurisdiction. Any resulting award would be binding between the parties pursuant to Article 296 of UNCLOS.
The five-member Annex VII arbitral tribunal has been formed, despite the non participation of China, and includes eminent law of the sea specialists. Thomas Mensah, president (Ghana), Jean-Pierre Cot (France), Stanislaw Pawlak (Poland), Alfred Soons (The Netherlands) and Rüdiger Wolfrum (Germany).
The Tribunal required the Philippines to provide full written submissions to it on all questions, including the question of jurisdiction, by March 30 2014.
The question of jurisdiction is critical, because China has made a reservation under Article 298, dated August 25, 2006, providing that
“[t]he Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.”
That reservation therefore extends to “disputes relating to sea boundary delimitations and historical titles.”
The Philippines claim is relatively carefully framed to avoid the reservation made by China to questions of “maritime delimitation” since it does not seek any delimitation of any disputed area. Rather the focus of the claim will be upon the characterization of the identified features as rocks or submerged features, and upon the legitimacy of the nine dash line.
Of those matters, it seems to me that it is most likely that the Tribunal might consider that it has jurisdiction to determine the characterization question as that seems to fall well outside the scope of the Chinese reservation. The legitimacy of the 9 dash line seems more closely related to China’s reservation.
I note in passing that very recent media comments by the President of the Philippines suggest a possible willingness to negotiate with China which may render the arbitration process moot.
Were the Tribunal to proceed to a determination of the status of the identified features, there would be much benefit for international law and the future resolution of issues in the area. The characterization by a Tribunal of great and undoubted legitimacy of the status of the various features would be a very helpful foundation upon which future tribunals and diplomacy could build.
The intersecting disputes of the South China Sea are truly complex. However, as the Philippines Request has shown, there are legal rules that form a framework for the possible resolution of some or all of the disputes. It would be naïve to think that a simple solution is available. However, by breaking the overall dispute into its components and applying a rules based analysis to each element, it is possible that the pathway to a negotiated settlement, possibly involving joint development, can be developed.
*About the Author
Dr Christopher Ward is a barrister who practices from 6 St James’ Hall, Sydney with a focus upon all areas of public international law. He was admitted to practice in 1993. He has a first class honours degree in Law from the University of Sydney where he was awarded the University Prize for international law, and a Masters degree in Law and the Prize for international law from the University of Cambridge.
He completed his doctorate in international law at the Australian National University.
He has a particular expertise in maritime boundary and law of the sea issues and was the co-author, with Professor Vaughan Lowe, of a prominent opinion on the question of East Timor’s disputed maritime boundaries with Australia.
Dr Ward is an Adjunct Professor of Law at the Australian National University. He is the President of the Australian Branch of the International Law Association and is a Visiting Fellow of the Centre for International and Public Law, and the Centre for Military and Security Law at the Australian National University.
1 December 2014