Interview: The South China Sea Ruling

From The Diplomat (Jul 16): Interview: The South China Sea Ruling (By Roncevert Ganan Almond)

International law expert Roncevert Ganan Almond on the recent ruling by the Permanent Court of Arbitration.

What do you think about this ruling? Does it follow your predictions?

The unanimous ruling of the Permanent Court of Arbitration (the “PCA” or “Tribunal”) in the dispute between the Philippines and China is a landmark decision under the United Nations Law of the Sea Convention (UNCLOS) and represents a strong rebuke of China’s expansive claims to maritime territory in the South China Sea. The PCA’s ruling serves not only as a technical legal decision, binding on the parties – China and the Philippines, but also as a broader message concerning the peaceful settlement of disputes in the South China Sea pursuant to a rules-based international order.

From a legal perspective, the Philippines won a decisive victory on almost all counts, which is not necessarily surprising, especially given the weakness of China’s maritime claims under international law. The nearly 500-page decision carefully documents Beijing’s violations of UNCLOS and highlights broader policy implications underlying its aggressive behavior in the South China Sea. One example is the PCA’s close examination of the status of maritime features within the South China Sea against the backdrop of UNCLOS’ role in protecting the “common heritage of mankind” and preserving the international community’s interests in preserving high seas freedoms in the region. Hugo Grotius would be smiling.

What are the consequences of the PCA’s ruling for China, Philippines and other countries which are involved in the South China Sea dispute?

While the Tribunal’s ruling is only legally binding on the parties, the consequences are broad and will impact all the countries involved in the South China Sea dispute. In brief, the PCA’s decision will provide a framework for viewing the behavior of claimants in the South China Sea starting with China.

Importantly, the PCA rejected China’s historic rights and “nine-dash line” claim, finding that the maritime zones set forth in UNCLOS were controlling for the purposes of determining maritime entitlements. The treaty effectively superseded China’s historic claims. Even if a historic right could be asserted, the PCA found that there was no evidence that China had exercised “exclusive control” over the seas and resources of the South China Sea. Notably, the PCA’s conclusion is consistent with what the United States has long articulated regarding China’s “nine-dash line” claim.

It is important to note that the Philippines carefully crafted its complaint to avoid raising issues concerning sovereignty and maritime delineations. To preserve its jurisdiction in the case, the PCA also acted cautiously and did not issue any direct conclusions regarding sovereignty disputes between China and Philippines in the South China Sea, such as weighing in on rival claims over the Spratly Islands and Scarborough Shoal. Despite this restraint, the effect of the Tribunal’s ruling is far-reaching.

For example, in reviewing the status of certain features claimed by China, the PCA limited its discretion to determining whether such features could generate maritime claims as high-tide features. Only inhabitable “islands” under UNCLOS generate extended maritime zones – exclusive economic zones (EEZs) and continental shelf.

The Tribunal found that Chinese-claimed features in the Spratly Islands were at best “rocks” entitled only to a territorial sea of 12 nautical miles or submerged reefs entitled to nothing. Because the PCA found that the Spratlys were not “islands” and could not individually or collectively create extended maritime zones, the PCA was able to determine that portions of the Spratly Islands were within the EEZ of the Philippines, as measured from its mainland baseline.

The PCA then leveraged its technical legal findings to criticize China’s aggressive posture in the South China Sea. The Tribunal determined that China’s actions, such as constructing artificial islands and restricting Philippine access to the area, were unlawful and unduly infringed on the Philippines’ rights within its EEZ. The PCA went further to note that China’s construction and land reclamation activities were causing severe and irreparable harm to the fragile ecosystem of the South China Sea.
In other words, the PCA’s technical analysis on the legal status of Chinese-claimed features in the South China Sea seriously damaged China’s sovereignty claims, despite the Tribunal’s careful attempts to state otherwise.

To the extent that other littoral states involved in the South China Sea disputes have issued extensive maritime claims and engaged in activities similar to China, such as the construction of artificial islands, the PCA’s ruling provides an important standard for measuring the legality of these claims and actions. We have already seen Taiwan reject the PCA’s determination that Itu Aba is not an “island” capable of sustaining human habitation and, therefore, does not generate any extended maritime zones such as a 200 nautical mile EEZ. Itu Aba is the largest natural feature in the Spratlys, which Taiwan occupies with a military garrison equipped with a runway and port facility.

In contrast, Vietnam may view the ruling as a favorable means of contesting Chinese jurisdictional assertions falling under the “nine-dash” claim and within Vietnam’s EEZ. In studying the nature of China’s claims in the South China Sea, the PCA specifically addressed the 2012 tender by the China National Offshore Oil Corporation (CNOOC) of blocks for petroleum exploration in Vietnam’s EEZ. The Tribunal held that, with respect to some areas of the blocks, China’s claims exceeded the maximum possible entitlements under UNCLOS. Vietnam could seize on this finding to revisit its challenge of CNOOC’s actions.

More generally, by concluding that UNCLOS comprehensively allocates maritime areas and extinguishes any prior historic rights of China, the PCA provides greater legal clarity to the competing maritime claims within the South China Sea.

How does the PCA’s ruling affect the way the world views the South China Sea?

The Philippines’ appeal to UNCLOS arbitration – following Beijing’s actions in 2012 to forcibly wrest control of Scarborough Shoal from Manila – achieved its diplomatic goal: It internationalized the South China Sea dispute.

Recall that China has consistently sought to prevent a multilateral approach to the maritime dispute, including through regional forums like ASEAN. The PCA implicitly criticized this “divide-and-conquer” strategy when considering whether to accept jurisdiction in the case, noting that the Philippines had expressed a clear preference for multilateral negotiations involving other claimant states whereas China insisted on bilateral diplomacy. As a result, the Philippines had effectively discharged its duty to exchange views with China as a precondition to compulsory arbitration under UNCLOS.

The PCA’s ruling further underscores the importance of the South China Sea to global commerce and prosperity. The importance of maintaining free access to Asia-Pacific sea lanes under international law cannot be overstated: almost one-third of the world’s maritime trade transits the South China Sea annually; eight of the world’s ten busiest container ports are in the Asia-Pacific region; and approximately two-thirds of the world’s oil shipments transit through the Indian Ocean to the Pacific. It was evident from the PCA’s decision that these global considerations weighed heavily on the Tribunal’s analysis and its conclusion to deny China’s exclusive and extensive claims in the South China Sea.

In addition, the international arbitration provides an important, if not the definitive record, of the South China Sea dispute. The three-and-half year proceedings at The Hague produced volumes of information including evidence drawn from various national archives, ancient maritime maps, and expert testimony on various topics ranging from navigational safety to environmental concerns to technical evaluations on the habitability of maritime features. Many of these documents involved Chinese sources. This record of materials will be incredibly important in shaping global opinion on and the history of the South China Sea, and will certainly be considered in any future legal action on the matter.

How will China react? If China ignores the PCA ruling, what costs will it incur?

China will likely continue its attempts to discredit the PCA’s ruling – legally and politically.

From a legal perspective, China has repeatedly attacked the credibility of the PCA and the arbitration process, and will likely continue to do so. Beijing probably recognized the weakness of its substantive maritime claims and, thus, was compelled to attack the proceeding on procedural and jurisdictional grounds. China argued that the subject-matter concerned territorial sovereignty and delimitation of maritime boundaries, which would present effective bars to compulsory arbitration. On this basis, China refused to participate and, in my view, missed a critical opportunity to shape the outcome of the verdict, develop the historic record, and influence global public opinion.

China will likely continue to deny the legal validity of the PCA’s decision pursuant to what Beijing perceives as a fatal jurisdictional flaw. I share Beijing’s view in its December 2014 “Position Paper” that the Philippines “cunningly packaged its case” – and the PCA was willing to accept the (devastating) logic of Manila’s legal brief.
Politically, China has attempted to create a coalition of states that rejects the arbitration proceedings, and may continue this effort. The list of supporters appears to be only a handful of countries, none of the alleged members of this coalition are major maritime powers, and other supposed members have disavowed Beijing’s description of their respective positions.

Indeed, China will have problems with painting the PCA’s decision as some kind of conspiracy led by the United States and the West in general. China voluntarily ratified UNCLOS in 1996. In addition, the Tribunal was composed of bench of international jurists and led by Judge Thomas A. Mensah of Ghana. Representatives from Australia, Indonesia, Japan, Malaysia, Singapore, Thailand, and Vietnam observed the proceedings. Notably, the United States, which is not a party to UNCLOS, did not participate. Moreover, the PCA is uniquely capable of handling technical and legal issues raised in the South China Sea dispute, having administered 12 cases similarly initiated by states under Annex VII to UNCLOS.

Ironically, the more China protests the PCA’s ruling as being meaningless in the South China Sea dispute, the more weight China is effectively attaching to the arbitration. In many ways China has already absorbed a tremendous loss of prestige. Nevertheless, and despite my hopes for a more restrained response, China will likely take actions to defy the PCA’s ruling and aggravate the security dilemma in the South China Sea.

Can the PCA’s ruling stop China’s aggression in the South China Sea?

A ruling by the PCA, an intergovernmental body with no enforcement capacity, itself will not stop China’s aggression in the South China Sea. Moreover, as noted briefly before, Beijing is likely to take actions that openly challenge the PCA’s ruling, particularly the findings that China’s historic claims have no basis under international law and that certain Chinese-controlled features do not generate extended maritime zones like EEZs.

For instance, China could continue its land reclamation and construction efforts in the Spratly Islands, which have added over 3,200 acres of land to the seven features Beijing occupies. China has begun transitioning to infrastructure development, including developing at least three airfield – each with approximately 9,800 foot-long runways – and constructing large maritime ports. The airfields, berthing areas, and resupply facilities will allow China to maintain a more sustained military presence in the area. In response to the PCA’s ruling, China could use this new military capability to detect and challenge activities by rival claimants or third parties seeking to apply the PCA’s findings, such as the United States via its freedom of navigation operations. China has already threatened to establish an Aircraft Defense Identification Zone (ADIZ), which could be utilized for this purpose, although the legality of such an ADIZ would be questionable at best, a subject I recently explored in the Harvard National Security Journal. China could also seek to reinforce its position by militarizing the Scarborough Shoal, which is only 150 miles from Subic Bay in the Philippines.

Unfortunately, I believe that certain details of the PCA’s ruling may unintentionally provoke China. For example, with respect to its analysis of whether Chinese construction activities on Mischief Reef violated UNCLOS, the PCA maintained its jurisdiction by holding China accountable for its description of the activities as being purely “civil” in nature. If China’s activities were determined to be “military” in nature, then the PCA would lack jurisdiction to rule on the issue, pursuant to a specific exception under UNCLOS. In the future, if only to avoid future compulsory arbitration, China may simply drop the thin veneer of civil-use and more explicitly militarize its positions within the South China Sea.

What on paper appears to be a sound legal determination may be in reality an unnecessary provocation in international affairs. This principle is at the heart of criticism directed at the Philippines for resorting to the arbitration process. I do not share this criticism because in the long term I believe the PCA’s ruling can serve as a positive platform for the peaceful resolution of the South China Sea dispute.

The PCA lacks an enforcement mechanism. So if China ignores the ruling, is there an organization or mechanism that can force China to obey it?

There is a famous court case in U.S. history, Worcester v. Georgie (1832), in which the Chief Justice of the U.S. Supreme Court, John Marshall, issued a ruling that individual state law that purported to seize Cherokee lands violated U.S. federal treaties.
President Andrew Jackson, who was opposed to the decision and later forcibly removed Native Americans from their land, allegedly replied: “John Marshall has made his decision, now let him enforce it.” The point being that judicial bodies do not have enforcement powers and rely on executive bodies to implement the law.

In the realm of global governance, the supreme executive body is the U.N. Security Council, and China holds veto power as a permanent member. More importantly, even the Security Council must rely on member states to enforce its decisions, including binding measures under Chapter VII of the U.N. Charter. Similarly, the PCA ruling will have to be enforced by members of the international community.

This institutional limitation, however, is a source of strength in the context of the South China Sea dispute. Because the PCA does not have enforcement powers, the ruling provides a diplomatic opening and focal point for a way forward. This, of course, assumes that China, the Philippines and others are able to take a step backward from the unyielding nationalism that encompasses much of the South China Sea debate. As I told Paul Reichler, lead counsel for the Philippines during the arbitration, now comes the hard part.

The United States has encouraged restraint on all sides. The Philippines, under the new leadership of Rodrigo Duterte, has communicated its desire to avoid further provocation and for new engagement with China. If a personality like President Duterte can offer signs of détente, surely President Xi Jinping can do the same, perhaps at the upcoming G20 Leaders Summit in China or the ASEAN Summit in Laos? Yet, I have my doubts as to whether China can resist the urge to take measurable action to defy the PCA’s decision.

Ultimately, all claimants have a shared interest in peacefully resolving the maritime disputes. The PCA’s decision provides a fresh opportunity for diplomacy in the South China Sea and ensures that any action in the region will be subject to the strict scrutiny of a global audience.

[Roncevert Ganan Almond is a partner at The Wicks Group, based in Washington, D.C. He has advised the U.S.-China Economic and Security Review Commission on issues concerning international law and written extensively on maritime disputes in the Asia-Pacific. The views expressed here are strictly his own.]

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