Ruling the South China Sea: Key issues from the Arbitral Tribunal’s award

In 2015 the Republic of the Philippines applied for arbitration through the UN Convention on the Law of the Sea on historic rights and maritime entitlements in the South China Sea and the lawfulness of certain actions by the Peoples Republic of China. Marina Tsirbas, senior executive adviser for policy engagement at the National Security College, The Australian National University, analyses the findings announced at the Permanent Court of Arbitration on 12 July 2016, and highlights key impacts on future nation state behaviour.

THE LEGAL RULING in the South China Sea dispute, which saw the Philippines take a case against China to international arbitration under the UN Convention on the Law of the Sea (UNCLOS), has widespread implications both as a test case for the law of the sea specifically, and for a rules-based global order more broadly.  The diplomatic and geopolitical ripples from the ruling will be felt for some time.

The tribunal’s ruling that none of the Spratly features are islands generating a 200 nautical mile Exclusive Economic Zone (EEZ), and few are high tide elevations, is significant and about as good as could’ve been hoped for from the perspective of reinforcing global commons aspects of the South China Sea and freedom of navigation and over-flight. It flows from this that China could only claim an EEZ in disputed areas near the Philippines through a claim to Taiwan. (Incidentally, Taiwan won’t be happy about the finding that Itu Aba is not an island which generates an EEZ.)

China can still claim vast parts of the seabed of the South China Sea through its continental shelf under UNCLOS given its broad continental margin. But it would need to lodge papers with the UN to ensure international recognition of those rights. 

Violating Philippines' EEZ

It could also continue to claim title to the high tide elevations in the Spratly islands through the means by which sovereignty to land is acquired at international law (the tribunal found a number of features, including Scarborough Shoal were high tide elevations including some that the Philippines had argued were not). But at most, all these elevations would generate would be a 12 nautical mile territorial sea around them. The tribunal specifically did not rule on which country had sovereignty over the high tide elevations.

The consequent finding of violations of Philippine EEZ rights by China through its creation of an artificial installation on Mischief Reef, its fishing practices and interference with the Philippines’ exploitation of hydrocarbons are useful clarifications on the validity of Chinese island-building activities, fishing and other forms of unilateralism. 

The finding on Chinese destruction of the marine environment is a particularly useful clarification of states’ obligations to protect the marine environment. The principles entailed in these findings would have potential application in other parts of the South China Sea where claimants have built on features which are claimed by more than one state and more generally.

The tribunal denied any special category of “historical rights” exists in the South China Sea outside of what UNCLOS provides. This demystification, which I’ve previously advocated for, is a useful diplomatic tool going forward.

Significant maritime obligations

The finding of violations of the obligations under UNCLOS to preserve the marine environment are significant and potentially far reaching, with broader application for preservation of the marine environment beyond national jurisdiction and for fisheries management. 

It also potentially provides a hook for other nations to act. For example, in sanctioning behaviour by their own nationals which contributes to the destruction of the marine environment by claimants in the South China Sea, by prohibiting port entry for vessels involved in island building, or by refusing to import South China Sea fish illegally caught. The most pertinent analogy here is the response states take to Japanese whaling vessels, for example, not permitting them to enter Australian ports.

Even before the ruling was issued, China had flagged that it would not accept it, a position it has since reinforced. China’s withdrawal from UNCLOS is a possibility that would be a bad result for the international community, and middle powers in particular. 

Those of us who believe in a rules-based order, and not just the right of might or the ability to reinforce right with might, need to get behind the ruling (Australian Foreign Minister Julie Bishop’s response in her recent press release on the ruling is exactly on point here). As Bishop said, it is an opportunity for the region to come together, and for claimants to re-engage in dialogue with each other based on greater clarity around maritime rights.

Backing the ruling

More substantive actions to back the ruling, as I’ve hinted at above, could also be taken. Australia could also consider whether it is prepared to sanction its nationals involved in hydrocarbon exploitation in parts of the South China Sea which are claimed by more than one state and where there is no agreement for exploitation.

Conversely, the ruling may have reinforced the case for the United States to ratify UNCLOS. And the possibility of a Chinese withdrawal makes it all the more important for the US to show its support for the rules-based order by doing so.

China could now proceed to lodge its extended continental shelf claim to jurisdiction over the vast majority of the South China Sea seabed – a process involving lodging a document with a UN body to achieve international recognition of the rights, although here too, some of China’s claim would overlap with others.

In parallel they could bilaterally negotiate their seabed claims or provisional arrangements for hydrocarbon exploitation. China could also clarify what it means by the nine-dash line.

China is unlikely to wind back any of the build-up on its artificial features. It may, however, temper some of its behaviour around preserving the marine environment. This would also be in China’s interests given the size of its fishing industry and market.

China will be on the back foot over the Spratly Islands features but will probably harden its stance on its view of freedom of navigation in the areas of EEZ generated by the Chinese mainland and the Paracels including Woody Island.

The judgement is detailed and there are many aspects to be examined before the full implications are clear. The tribunal expressed the view that no bad faith should be assumed.

A few months before China’s hosting of the G20, the decision, and management of the next steps poses a challenge for President Xi and other world leaders. Triumphalism should not be the order of the day. It will be important for all nations to take a measured tone and approach going forward.

Marina Tsirbas is senior executive adviser for policy engagement at the National Security College, The Australian National University. First published in The Asia and the Pacific Policy Society Policy Forum. Read the orignal article