The 'Nine Dash Line' is Untenable, but...
The arbitration Tribunal (Tribunal) acquiesced with the Philippine position. But why can’t Filipino fishers go near Panatag Shoal to fish? Why is there tension still in the South China Sea? What does the Tribunal’s decision serve?
The Arbitral Tribunal and the issues it tackled
The Arbitral Tribunal issued on July 12, 2016 its decision on the questions the Philippines submitted for resolution on January 22, 2013. These pertain to the islands, reefs, rocks and shoals in the South China Sea.
The Tribunal was formed on June 21, 2013, in accord with the Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal is different from the Permanent Court of Arbitration or PCA that has served as the administering institution of cases and keeper of records of the proceedings of this case.
The Philippines asked the Tribunal to decide on several questions that could be summed up into four:
First, the source of maritime entitlements in the South China Sea and the implications of UNCLOS in China’s claim to its historic right inside the so-called “nine-dash-line”;
Second, whether China’s and the Philippines’ classification of specific features in the South China Sea as islands, rocks or elevations during low tide or as submerged banks is correct as this will be the basis of the maritime zones that these may generate;
Third, whether China’s actions, such as construction and fishing that damage the marine environments of the South China Sea, violate the UNCLOS as these interfered with the Philippines’ exercise of its sovereign rights and freedoms under UNCLOS; and
Fourth, whether particular actions of China, especially the large-scale reclamation and construction of artificial islands since the start of the arbitration have illegally aggravated and extended the dispute.
Like what it has repeatedly said and published, China neither accepted nor participated in the arbitration proceedings, insisting that the Tribunal does not have jurisdiction. This did not prevent the Tribunal from continuing its study and from deciding on the issues.
According to Article 288 of UNCLOS: “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.” The Tribunal decided that it has jurisdiction over the questions, October 29, 2015. Annex VII of UNCLOS clearly states that a party’s non-participation does not impede the arbitration proceedings; it however, provides that a tribunal has to satisfy itself that the claim is well founded in fact and in law.
The decision awarded On the historic rights and the “nine-dash-line,” the Tribunal decided that China does not have legal basis in claiming historic rights over resources within the maritime area of the “nine-dash-line.” According to the Tribunal, the UNCLOS has comprehensively allocated rights of states to maritime areas.
The UNCLOS carefully considered protection for pre-existing rights to resources during negotiations on the creation of the exclusive economic zone but It did not adopt these.
According to the Tribunal, while China had historic rights to maritime resources in the South China Sea, the entry into force of the UNCLOS extinguished these rights in areas that are not a part of its exclusive economic zone as provided in the UNCLOS.
The Tribunal noted that while navigators and fishers from China and other states used the islands in the South China Sea, it finds no evidence that China exercised exclusive control over these waters or its resources.
On the status of features of the sea, the Tribunal ruled that none of the Spratly islands can generate an extended maritime zone (EEZ and continental shelf) and as a collective unit, these islands cannot likewise generate a maritime zone. And, since none of the reefs that China claims can generate an EEZ and having ascertained that “Mischief Reef, Second Thomas Shoal and Reed Bank form part of the EEZ of the Philippines and are not overlapped by any possible entitlement of China,” the Tribunal ruled that “the UNCLOS is clear in allocating rights to the Philippines with respect to sea areas in its exclusive economic zones.”
Before reaching this conclusion, the Tribunal first evaluated whether the reefs that China claims are above water or not during high tide. According to the UNCLOS, maritime features that are above water during high tide generate an entitlement to at least a 12-nautical mile territorial sea. Features that are submerged during high tide, however, are not entitled to any maritime zone. Islands are entitled to a 200-nautical-mile EEZ and continental shelf while rocks, which cannot sustain human habitation and economic life on its own do not have this entitlement.
The Tribunal likewise pointed out that official personnel deployed in these reefs depend on external support and therefore, their presence does not reflect the capacity of these features. It mentioned as well that historically, small groups of fishers and Japanese enterprises used the Spratly islands for fishing and to gather guano but these were temporary and did not constitute inhabitation in a stable community.
As to whether China violated the law in the South China Sea, because it is clear that the Philippines’ EEZ covers specific areas, the Tribunal decided that China violated the sovereign rights of the Philippines in its EEZ. China prevented fishing and petroleum exploration, built artificial islands and did not prevent Chinese fishers from fishing within the EEZ of the Philippines.
The Tribunal ruled that Filipino fishers, just like the Chinese fishers, have traditional fishing rights at the Scarborough Shoal. China has prevented Filipino fishers from using this right by denying them access to the fishing area.
The Tribunal pointed out that China’s latest large scale reclamation and construction of artificial islands severely damaged the coral reef environment. China, the Tribunal further ruled, violated their obligation to preserve and protect fragile ecosystems and habitat of depleted species. Besides, China did not perform its obligation to stop Chinese fishers from gathering sea turtles, corals and giant clams even if they knew that this was happening.
As to whether China’s particular actions illegally aggravated and extended dispute, since the commencement of the arbitration, the Tribunal saw that the large-scale reclamation and construction of artificial islands were not in keeping with the obligation of a state at a period when proceedings are ongoing towards the resolution of the dispute. This caused irreversible harm to the marine environment and destroyed evidence of the natural state of the feature (particularly, Mischief Reef) in the South China Sea, which is being disputed by the two parties.
The Tribunal did not decide on the stand-off between naval ships and coast guard vessels of the Philippines and China at the Second Thomas Shoal (Ayungin) because it lacks jurisdiction on military activities.
A starting point for a peaceful solution
While both the Philippines and China consider territorial sovereignty as the vital question, the Tribunal did not rule on this. Likewise, it did not decide on the boundaries of the EEZ of the Philippines and of China. It would be easier, however, to resolve these issues if the Tribunal’s ruling could be implemented.
Upon reckoning, it is not only the dispute between the Philippines and China that can get enlightenment from this ruling of the Tribunal. The Tribunal’s award is largely an elucidation of some provisions of the UNCLOS. Other states that have claims over features of the South China Sea may use this as a starting point in reexamining their positions. After all, all the concerned states ratified the UNCLOS.
While the UNCLOS, however, obliges or binds the two parties to implement the Tribunal’s ruling, the peaceful solution is not immediately achievable. China does not recognize the decision. The UNCLOS does not have the mechanism to force its implementation. The ASEAN attempted again to move the dispute towards a solution, decision making through a consensus, though, hinders it. The ASEAN Foreign Ministers’ Meeting could not get a consensus even in the mere mention of the Tribunal’s ruling in its statement.
For many observers, China is arrogant and unreasonable. It still repeatedly says it will not budge on its claim of sovereignty in the South China Sea. It will not abide by the decision of the Tribunal.
It is difficult to comprehend that China asserts sovereign control over almost the entire sea based solely on what it states as role of the features in their history when it had ratified the UNCLOS.
China’s behavior is not at all new among big powers. China behaves as a big power like the US, Russia and the UK that do not obey decisions of international courts or tribunals when decisions are not in their favor.
We should view China’s position in relation to its economic and political targets as a rising power that experienced humiliation several times before the international community. As an economy, whose primary strength is in trading, it is very important for China to secure the entry and exit of its export and import. This is in the eastern seaboard of China, facing the East China Sea. China’s effort to build up its navy and have access to the open seas anchor on this. But the US, by all means, aims to foil China’s being a “threat” to its dominance. Hence the pivot or rebalance to Asia-Pacific, a strategy to confront and defeat the challenger to US’s lone dominance.
China is very well aware that the US will use its concept of “air-sea-battle” against China (Manyin,et al. 16). While this is not discussed very much in open publications, this consists of the building of US’s “networked of integrated forces capable of attack-in-depth to disrupt, destroy and defeat adversary forces or NIA/D3” (Etzioni 39). That's why, the dispute over reefs and rocks in the South China Sea is secondary. The rivalry of the two powers: the one maneuvering to remain number one and, the one in the second place that does not want to be hampered in its dream to soar, is primary.
The rivalry between US and China is mounting. While they call for a peaceful solution and easing of the conflict, both of the two states are non-stop in taking provocative actions.
The US pushes through with its FONOPS and shows the world that it wants an unhampered access to the sea, an important factor in the operation of its empire of bases. Its deployment of US bombers and missile systems to Guam, Korea and Japan continues.
China will continue preparing the launching pads of its super long-range ICBMs.
EDCA, an obstacle to the implementation of the Tribunal’s ruling
Despite former Foreign Affairs Secretary Albert del Rosario’s and former Philippine ambassador to the US Jose Cuisia’s push to force on China the implementation of the Tribunal’s ruling that would expectedly add heat to the dispute, the Duterte government correctly decided to be calm and to look for ways to start again decorous talks with China. A barrier, though, for China to rebuild its trust for a peaceful settling of issues with the Philippines exists. This is the US-Philippines Enhanced Defense Cooperation Agreement (EDCA) that the Supreme Court declared constitutional, to which Duterte did not object.
US exerted effort to produce the EDCA in line with the pivot’s task of strengthening existing alliances and making the allies carry some of the burden in fighting US’s enemy. Through this, the US can easily position soldiers and war materiel including the NIA/D3.
If the Duterte government is serious at finding a peaceful solution to the South China Sea dispute, he should rescind the EDCA and start a new era of independent foreign policy. K