COM 05/2016

When Politics and Law Collide: The South China Sea in the Post-Hague ‘New Normal’

Sourabh Gupta, Senior Asia-Pacific  international relations policy specialist, Institute for China-America Studies



On July 12, 2016 in a courtroom in The Hague, the Republic of Philippines won a famous victory against the People’s Republic of China in a South China Sea maritime rights-related arbitration case that it had initiated three-and-a-half years earlier.

The arbitral tribunal issued two weighty rulings in favor of the Philippines. First, it ruled that no China-administered or claimed land feature in the northern sector (Scarborough Shoal) or the southern sector (Spratlys) of the South China Sea is capable of sustaining human habitation or economic life of their own. As such, none meets the definition of a “fully-entitled island” within the meaning of Article 121 of the Law of the Sea Convention. The implication of this ruling was that none of these China-claimed features in the South China Sea were entitled to an exclusive economic zone (EEZ) or continental shelf – in turn, enabling the court to find jurisdiction to rule – unfavorably – against China on a number of other intrinsically-linked complaints submitted to the court by Manila. Second, the tribunal ruled that China’s claim to ‘historic rights’ within the Nine-Dash Line was contrary to the Law of the Sea Convention and without lawful effect be- cause it exceeded the geographic and substantive limits of China’s maritime entitlements under the Convention. Further, it declared that following the coming-into-force of the Convention in 1994, any exclusive ‘historic rights’ that might have existed in waters that are not appurtenant to a mainland coast had been superseded.

The tribunal also issued a host of lesser rulings in favor of the Philippines. First, it observed that Scar- borough Shoal had been a traditional fishing ground for Filipino artisanal fishermen and ruled that de- spite China being the ‘coastal state’ and administrator of the Shoal, these Filipino traditional fishing rights had been preserved in the Shoal’s territorial sea by the Law of the Sea Convention. Second, that Chinese fishermen and Chinese flagged vessels had engaged in destructive activities that had harmed the marine environment; equally, that China’s land reclamation activities – while not illegal per se, except in the case of Mischief Reef – had damaged the coral reef ecosystem in the Spratlys and was in violation of its international environmental treaty obligations. Finally, the tribunal ruled that China’s law enforcement vessels had failed to observe, and in fact repeatedly violated, many international navigation-related regulations during the course of its enforcement operations in the vicinity of Scarborough Shoal.

China did win one small though hollow ruling in its favor. The tribunal observed that it was not in a position to rule whether China’s enforcement activities in the vicinity of the Second Thomas Shoal had violated the Philippines’ sovereign rights and freedoms in the latter’s EEZ.

With the tribunal having rendered its award on a host of maritime entitlement issues, it would be desirable to say that a contentious chapter in the law and politics of the South China Sea has been brought to a close and that the next step should be to discuss and agree upon mechanisms to peacefully resolve the underlying territorial disputes in this semi-enclosed sea. It would also be a highly-optimistic statement to make. Far from having closed the chapter on these maritime entitlement disputes – let alone open a path to resolving the underlying territorial sovereignty quarrels, the ruling has only established a ‘new normal’ that will serve as a new departure point for diplomats and naval strategists in the years ahead. Worse, in laying out some highly controversial – if not outright dubious – legal reasoning within certain limited but critically-import- ant sections of the award, the tribunal, portentously, might even have set-back the cause of both regional political comity and international maritime law in the South China Sea.

Playing Fast and Loose with Precedent and Law

International jurists, it was long assumed, are by nature predisposed towards win-win outcomes. While great power competition in the international system tends to gravitate towards zero-sum outcomes due to the relative imbalance in power capabilities and the absence of a central political authority, jurists prefer to hew in their reading of the law to constructive, middle-of-the-road solutions. Especially in a case involving a (non-participating) major power in a highly-politicized environment with important geo-political ramifications, it was assumed that the jurists would opt for discretion, fair-play and moderation in their award.

These assumptions were irreparably shattered on July 12 with a judgment that was as harsh as it was audacious.

The ruling was harsh because the arbitrators en- joyed ample latitude to carve out a constructive, mid-path interpretation of a critically important but ill-defined provision of maritime law (Article 121 – Regime of Islands), yet chose to indulge in a tortuous train of legal thought that lacked basis in case law as well as in the reading of the letter of the law and produced a zero-sum outcome that overwhelmingly favored Manila. In the course of throwing decades of jurisprudential caution out of the window, the tribunal redefined the legal meaning of a ‘rock’ from a land feature “which cannot sustain human habitation or economic life of their own” to one “which hasn’t sustained a settled community of inhabitants or economic life of their own.” Having substantially transformed this meaning, the tribunal proceeded to strike down the capacity of Itu Aba and every other China-claimed high-tide feature in the Spratlys group to generate an EEZ or continental shelf, and in so doing thereby found jurisdiction to rule on a number of intrinsically-linked submissions against China.

Yet very little in the tribunal’s re-interpretation of Article 121 bears resemblance to the letter or spirit of the provision. The provision lays down no requirement – implicit or other – that the ‘human’ presence referenced be an exclusively civilian one; that the ‘habitation’ on a feature be a “non-transient one who have chosen to stay and reside”; that the feature must furnish an abstract “proper standard” of lifestyle; or that the feature’s entitlement is exclusively intended for a beneficial indigenous population. And while the object and purpose of Article

121 was indeed intended to not enable a tiny feature to generate a disproportionately large entitlement to maritime space, there is utterly nothing in the official record of the Law of the Sea negotiations to suggest that a “stable group or community” standard was envisioned to qualify a feature as a full-entitled island that can ‘sustain human habitation’.

Indeed, the rulings foray into the language of equitability and delimitation (to which the question of a feature’s entitlement is intrinsically-linked) leaves the distinct impression that the tribunal methodically tailored the definitional goalposts to circumvent China’s legal opt-out from maritime delimitation-linked cases to deliberately orchestrate the downgrading Itu Aba to a ‘rock’ – and thereby find jurisdiction to rule, unfavorably, on a host of submissions against China.

The ruling was audacious because the arbitrators dismissed an earlier ruling in sea law (on how ‘historic rights’ obtain in maritime spaces) with a breeziness that was inversely proportional to its tortuous reasoning on the Article 121 ‘island/rock’ issue. At minimum, the panelists bore an obligation to lay out a reasoned basis for overturning precedent – and a landmark one at that. Instead, they resorted to a superficial explanation that was lifted almost word- for-word from the Philippines’ March 2014 memorial to the tribunal.

The arbitral tribunal was right to observe that China cannot enjoy any form of exclusive ‘historic rights’ in the South China Sea that is not appurtenant to its mainland coast. Especially in waters that are within its nine-dash line but since the entry into force of the LOS Convention have become part of the exclusive zones of its littoral neighbors, such exclusive rights to fish or conduct minerals-related activity have been decisively superseded. Equally, the tribunal was wrong to observe that China cannot enjoy a non-exclusive ‘historic right’ of access insofar as traditional fishing is concerned in waters that are within its nine-dash line but have since become part of the EEZ of its littoral neighbors in the South China Sea. Chinese nationals, traditional fishermen in particular, can indeed enjoy such a right.

In a landmark ruling in the late-1990s (Eritrea v. Yemen), the International Court of Justice (ICJ) had ruled that there are “important elements capable of creating ‘historic rights’ [in the semi-enclosed Red Sea] which accrued … as a sort of servitude internationale (or easement) falling short of territorial sovereignty.” So long as the “special factors [that went into the crystallization of this right of access for traditional fishermen] constituted a local tradition, [it was] entitled to the respect and protection of the law and was not qualified by the maritime zones specified under UNCLOS.” Mauritius v. United Kingdom (2015) reconfirmed that “states may possess particular rights by virtue of local custom” which operate “for all intents and purposes equivalently” in each of the maritime zones created by the Convention, and that the coastal state bears an obligation to pay “due regard” to these user states (traditional fishing) rights and exercise its Convention-based rights “subject to these other rules of international law.”

On July 12, the tribunal cherry-picked the arguments within that were expedient, disregarded those that could have validated a non-exclusive Chinese traditional fishing right of access within the nine- dash line, and was remiss in laying out a reasoned basis for its casual ignoring – and overturning – of a landmark precedent.

It agreed that Manila was entitled to reach be- yond the text of the convention to enjoy a non-exclusively exercised traditional fishing right in the territorial sea of the Scarborough Shoal, which was part of the body of general international law pre- served by UNCLOS. It disregarded prior injunctions that “[t]he traditional fishing regime is not limited to the territorial waters of specified [mid-sea] islands” but also extends for all intents and purposes equivalently to each of the maritime zones created by the Convention. Obliged to explain its inconsistent view why traditional Chinese fishing practices which it implicitly admitted satisfies the threshold of being considered a local tradition in a semi-enclosed sea should not enjoy a limited right of access within a neighboring foreign EEZ, the tribunal could only muster that the ICJ was able to reach this conclusion in Eritrea/Yemen “because it was permitted to apply [pertinent] factors other than the Convention itself under the applicable law provisions of the parties’ arbitration agreement” and was thereby “empowered to go beyond the law on traditional fishing as it would exist under the Convention.”

A procedural rule, effectively then, served as the basis for the tribunal to strip a long-standing historical practice that had acquired the force of law and crystallized into a privately-held ‘historic right’ – even though the panelists themselves had remarked earlier in the award that such privately-acquired rights do not even cease on a change of sovereign- ty. China’s traditional fishing practices materially satisfy the key “pertinent factors” listed too in the applicable law provisions of the Eritrea/Yemen arbitration agreement. Further, by extinguishing a landmark ruling without so much as an explanatory footnote (in an award otherwise crammed with 1,498 footnotes), the tribunal also tore down an economically useful facility – international servitude/ easement – that both the ICJ and its predecessor, the Permanent Court of International Justice (PCIJ), had recognized and roundly appreciated in the course of judgments that span the 20th century.

When the dust finally settles on this controversial award, the disturbing irony of July 12th will be this: where there was no basis in case law (on the Article 121 question), the tribunal found a means to manufacture one, despite precedent and opportunity to by-and-large discreetly side-step this question; where there was basis in case law (on the ‘historic rights’ question), the tribunal struck it down with- out so much as an explanation of its basis for doing so. Further, in the course of its ruling, the arbitrators also ripped apart the deliberate ambiguity that has at times helpfully spurred the search for win–win solutions to the Asia-Pacific region’s overlapping challenges at its peripheries. Yet another Asian frontier has now been transformed, to quote Lord Curzon, into a ‘razor’s edge on which hang suspended the modern issues of war or peace’.

So where to from here for China and ASEAN

On July 12, 2016, international jurists in The Hague misused an important opportunity to set the law and politics of the South China Sea on a qualitatively more polished path than the region’s diplomats have, hitherto, been able to produce. Had they ruled Itu Aba to be a fully-entitled island, it could have furnished a basis for Sino-Philippine oil and gas joint development in the overlapping area of entitlement. Now, with no geographic overlap to contend with and a de facto delimitation of the China–Philippines maritime boundary furnished, the principle of ‘shelving differences and seeking joint development’ has been rendered hollow and the raison d’être that sustains the envisaged Code of Conduct undercut. Equally, had the tribunal re-confirmed that a local custom-based traditional fishing right was preserved across all the exclusive maritime zones in this semi-enclosed sea, it could have furnished an incentive for the nine-dash line to be thrown open on equal terms as a common fishing ground for all artisanal fishermen of every littoral state that borders this semi-enclosed sea.

China and ASEAN’s leaders on the other hand have demonstrated commendable self-restraint in the wake of the award. They must now try to expedite progress on the long-discussed Code of Conduct as well as on establishing the requisite hotlines between their foreign ministries, as they discussed at their recent deliberations in Vientiane in late July. Despite the award, they should also explore the possibility of undertaking cooperative activities in the South China Sea, such as navigation safety, search and rescue, environmental protection and combating transnational crimes at sea. Foremost, going forward, as China and ASEAN continue to re-group after the award and gingerly mold the ‘new normal’ in the South China Sea to their mutual benefit, they must form a consensus on one important point: as best possible, they must throw their weight behind comprehensive and cooperative management frame- works in this semi-enclosed sea. Even as they legally pay due respect to the award, they must politically rise above it and frame overarching collective functional mechanisms that foster good order at sea and secure peace and stability in the wider region.