The latest award in the South China Sea arbitration by the Hague-based Permanent Court of Arbitration (PCA) has stirred new debates in the realm of international peace and security. The award has academic as well as pragmatic significance. On the academic side, it is likely to spark off a debate about primacy and hierarchical relationship of the sources of international law vis-à-vis treaty and customary law; on the pragmatic side, it will test the limits of the international world order with special reference to pacific dispute settlement, inside and outside, the United Nations system. The instant article will briefly outline the facts and the applicable international law of the sea in the case, followed by brief analysis.
At the outset, it may be appropriate to state that due to language limitations, the version of Chinese, in original and in pristine form, is hard to get, therefore, in absence of any such material, the student of the subject has to rely on the available record, which usually is in English, and is authored by the Western authors.
With this caveat, let’s now try to examine the facts of the case.
The factual ebb and flow of the case have bearing over the rise of the Peoples Republic of China (PRC), in the modern times, especially its economic uplift.
The South China Sea (hereinafter SCS) is a large semi-encircled sea with over three million square kilometres of maritime space. It is bordered by the PRC, Vietnam, Indonesia, Malaysia, Brunei, and the Philippines. It has many islands and islets; two most important islands are Paracel and Spratly, which involve competing claims.
The dispute in the SCS, as per Chinese viewpoint, is regional in nature. The international community, especially the US, due to its interests in the sea lines of communication (SLOCs), and in view of the rise of the PRC, has made efforts to internationalize the issue. According to an official study titled ‘Limits in the Seas’ by the State Department of the United States (Study No. 143 published by the Bureau of Oceans and International Environment and Scientific Affairs on 5th December, 2014), the PRC internationalized its ‘Dashed Line’ claim in the South China Sea by writing two Notes Verbales (diplomatic letters) to the Secretary General of the United Nations asserting the following:
“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…”
This internationalization of the dispute is the point of departure of the instant formal procedure in the PCA. As far as the PRC’s stance is concerned (according to the study by the US State Department), it has two types of claims: land claims and maritime claims. These claims can best be understood by appreciating the concept of ‘Nine-Dash Line’ that is presented as a synonym of the PRC claim. The ‘Nine-Dash Line’ concept is, in fact, reference to nine markings on a 1935 map of SCS prepared by the Land and Water Maps Inspection Committee of the Republic of China. Whether these markings signify only maritime or land claims (including islands dispute) or both, is the nub of the dispute amongst the countries bordering the SCS. Consequently, the origin of these markings and their legal value are two issues that have allied significance. This internationalization of ‘Nine-Dash Line’ matter, coupled with the recent activities of the PRC (of prohibiting the Philippines fishermen to operate in the area), has triggered the instant arbitration process.
Proceedings in the Permanent Court of Arbitration
The Philippines instituted proceedings against the PRC in the PCA, which is a court established by the 1899 Hague Convention on the Pacific Settlement of International Disputes, and acts outside the UN system, but is integrated into it, through treaties. On 12th July 2016, the Arbitral Tribunal of the PCA issued an Award that was widely reported in the international media, in which, the impression was given as if the PRC has lost the case. Going through the Award, it transpires, that the PRC never contested the case on merits or on technical grounds; it only issued a ‘Position Paper’ to the PCA stating therein that it neither accepted nor participated in the proceedings. The press release issued by the PCA records this fact. It also shows that the Award was not the first one against the PRC. Prior to this, on 29th October, 2015, in a separate Award on jurisdiction, the PCA had found that it had jurisdiction in the matter. For record, it may be noted that PRC and the Philippines are parties to the UN Convention on the Law of the Sea 1982 (Convention).
Applicable International Law of Sea
The applicable international law to the case is the International Law of Sea, which is codified in the Convention. Along with the Convention, other allied treaties dealing with the matter included maritime safety and collision at sea treaties. Quintessentially, the Philippines had raised the following issues that were addressed in the latest Award of the PCA:
1. Jurisdiction of PCA
The jurisdiction of the PCA was assumed by its Arbitral Tribunal by invoking Article 288 of the Convention which provides that ‘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’. Besides, it relied on Article 9 of the Annex VII of the Convention which states that in case a party fails to appear in the proceedings, such failure shall not be constituted as a bar on the proceedings of the tribunal. The analysis of the matter will, however, show that the legal foundations on the basis of which, the PCA assumed jurisdiction, are arguable.
What constitutes a ‘dispute’ under the Convention, especially in view of limitations imposed on settle-able disputes under its Article 297 is far from clear in light of the facts of this case. Notwithstanding Article 9 of Annex VII of the Convention, it may also be noted that Article 287 of the same provides a choice of fora for settlement of disputes; without exercising such choice, how can Article 288 be invoked against a party to the Convention to affect compulsory jurisdiction against it. With the assumption of jurisdiction being questionable, it is difficult to attribute legal effects to any decision of a tribunal. Finally, PRC stated in its Position Paper that the matter related to its territorial jurisdiction and not to the interpretation of the Convention, therefore, the tribunal could not invoke jurisdiction in the case.
2. Legal Source of the Competing Claims
According to the PRC, the source of its claims, both land and maritime, was ‘historic rights’, which in the parlance of the international law can be categorized as ‘customary international law’. The PCA did not agree with this position of the PRC, and found that the law, as stated in the Convention, was ‘final’ inasmuch as maritime zones in waters was concerned. It also noted that the ‘historic rights’, if any, were exercised by the PRC only as its freedom on high seas and that the position was against the codified international law in form of a treaty.
This aspect of the case brings in the jurisprudential debate about the hierarchy of the sources of the international law, especially qua customary law and the treaty law.
The PCA did not deal with the jurisprudential aspect of the case. Besides, it chose to upend the primacy of ‘the customary international law’ by holding that ‘the historic rights’ of the PRC (in form of its ‘Nine-Dash Line’ version) were ‘extinguished’ by the water zone system created by the Convention; this treatment of PRC’s ‘Nine-Dash Line’ demolished the very legal basis of the case of the PRC. Perhaps in anticipation, the PRC opted to remain out of the process.
3. Features Determining the Maritime Zones
The PCA then proceeded to interpret Articles 13 and 121 of the Convention, which are technical in nature. Article 13 deals with the definition of ‘low-tide elevation’ and states that it can be used as a ‘baseline for measuring the breadth of the territorial sea’. On the other hand, Article 121 deals with definition of an island and states that ‘an island is a naturally formed area of land, surrounded by water, which is above water at high tide’. It also states that ‘rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf’. Interpreting the two legal provisions together the PCA found that ‘Spratly Islands’ (claimed by the PRC as islands) are not ‘legally’ islands and shall be treated as ‘rocks’, hence they could not generate water zones like the exclusive economic zone or the continental shelf. This interpretation of the tribunal is fictional as it has used legal reasoning to categorize an ‘island’ as a ‘rock’!
Legality of the PRC’s Activities
The PRC’s activities of land reclamation, construction of artificial islands, harvesting of endangered sea turtles by methods that inflict severe damage, prohibiting fishing by Philippines’ vessels, interfering with Philippine’s petroleum exploration and conduct of its law-enforcement vessels at Scarborough Shoal were declared not in consonance with Articles 192 and 194 (obligation to preserve marine life) of the Convention by the PCA; it also found the PRC in breach of its obligations under other conventions related to preventing collisions at sea and to maritime safety. With no formal defence on behalf of the PRC, these declarations were, at best, unilateral.
Enforceability and International Peace
Within the four corners of the Convention, there is no mechanism to enforce the award of the PCA. Perspectives differ on many an issue. For example, some human rights international lawyers argue the bottom-up approach to enforce the award by starting from exploration finding, and by pursuing private international law approach; on the other hand, the PRC’s official response clearly reflects its strait-jacket approach. The US and its allies that long for a waning PRC, try to evince a ‘moral’ victory to legitimize their own agenda of slowing down the PRC. The issue of enforceability is less of a legal and more of a political issue for the international peace.