[Editor’s Note: This is a cross-post of an article I submitted to the Diplomat a few weeks ago. I am wrapping up a more detailed legal analysis of the issues and aim to make it a law review article. I will cross-post here too that once that has been submitted and accepted.]
When the Permanent Court of Arbitration in The Hague recently announced that it would take “jurisdiction” over Philippines’ arbitral claims against China, many reported the decision as a victory for the Philippines and as a triumph of the “rule of law.” I beg to differ. The Court, on the contrary, has muddled, not upheld, international law, and by trivializing the states’ duty to negotiate in good faith – as enshrined in the U.N. charter, stipulated in the UNCLOS, and specifically agreed to between the parties – has greatly damaged the prospect for peace, cooperation, and a final resolution of the disputes.
China’s 9-Dashed Line
By far the most serious and important of the Philippines’ claims are allegations that China has no historic rights to the South China Sea under the UNCLOS. More specifically: 1.) China is not entitled to maritime rights beyond the sui generis rights provided under the UNCLOS; and 2.) China’s historical “9-dashed” line contravenes the UNCLOS.
The Chinese side has refused to participate on the ground that UNCLOS does not cover sovereignty issues, and that Article 298 specifically guarantees signatories, among other things, the right to opt out from compelled arbitration over “disputes … involving historical bays and titles.”
The Court upheld jurisdiction anyway, saying that it will make its ultimate decision based on an assessment of China’s “historic titles” on the merits. Despite conceding that it had no jurisdiction to arbitrate any issue involving territorial titles, the Court somehow believed that it had power to adjudicate whether China’s potential claims to “historic waters” is valid.
This is a truly unprecedented and remarkable result!
The notion of “historic waters” has actually been raised several times since the first United Nations Conference on the Law of the Sea. In 1962, the Secretariat even produced a detailed study on the topic. By the 19th session (1967), negotiators decided to drop efforts to codify the regime due to its complexity, “considerable scope,” and “political problems.”
The I.C.J. – which would require the explicit consent of both China and Philippines to take on a case like this – has observed that while the notion of “historic waters” is firmly rooted in general International Law, each case is unique, and the notion has yet to submit to a common precise definition.
By compelling arbitration of issues that had escaped the grasp of thousands of legal experts working across two and a half decades through some 15 convention sessions, issues that may be intrinsically political, the Court stands on the cusp of making a mockery of both UNCLOS and International Law in general.
Maritime Rights Arising from Features in the South China Sea
Philippines’ next most important set of claims include a list of assertions that various land and maritime features in the South China Sea (Scarborough Shoal, Mischief Reef, Second Thomas Shoal, Subi Reef, Johnson Reef, etc.) do not generate maritime rights. China insists that Article 298 absolves China of the duty to participate in arbitration relating to sea boundary delimitations.
First, the Court proclaimed that since the Philippines had explicitly asked the Court not to demarcate boundaries by coordinates, the case is not about “sea boundary delimitations.”
But as Justice Antonio T. Carpio of the Philippines (one of the most vocal critics of China’s “9-dashed” line) has declared before: The current case is so important for the Philippines because “80 percent of its exclusive economic zone and 100 percent of its extended continental shelf” in the South China Sea is at stake. The ultimate goal is for the Court to pronounce that China is entitled only to rights arising from its mainland coasts and Hainan Island. But short of that, the more land features Philippines can eliminate as capable of generating maritime rights, the harder it would be China to justify its “9-dashed” line.
If there is ever a dispute about maritime boundary delimitation, this is it.
Second, the Court insisted that it had the authority at least to take a tentative look – based on Article 121 – at whether China is justified in making overlapping claims from territories in the South China Sea in the first place.
Article 121, however, is notoriously known for its ambiguities.
Some jurists have suggested that the defining characteristic whether maritime territories generate maritime rights under the Article hinges on whether they “can sustain human habitation or economic life of their own.”
But others have pointed out that Article 121 only stipulates that “rocks which cannot sustain human habitation or economic life of their own” cannot generate maritime rights. Without more, and without defining what “rocks” are, Article 121 actually leaves it open-ended whether – or at least how and under what circumstances – human habitability and economic viability apply to UNCLOS regimes such as “islands” and “low-tide elevations.”
It might at first seem perplexing why so crucial a passage, only some 80 words long, could be written in such a cryptic and ambiguous manner. As it turns out, because the UNCLOS was drafted through a consensual process and ratified as a package – with no room for signatories to make individual reservations – the drafters of the UNCLOS inevitably resorted to ambiguous languages when irreconcilable differences arose. Article 121 is one of many such passages.
To appreciate just how open-ended Article 121 actually is, consider how the Court might approach the condition of human habitability and economic viability here.
Would the court require actual historic populations and historic economic activities in assessing human habitability and economic viability? Would it accept historic but seasonal fishing populations to support human habitability? Would it accept historic records of continual, regular fishing and mining activities to support economic viability? Finally, must “islands” or “rocks” “sustain human habitation or economic life of their own” individually or can an archipelago do so in the aggregate?
These are not just idle questions. China has always viewed the hundreds of features in the South China Sea in large historically cognizant units such as XiSha (the Paracels), DongSha (the Pratas), ZhongSha, and NanSha (the Spratlys). If history is consistently ignored, China might ask: Where would the Court draw the line regarding new technologies. Can deployment of new technologies such as desalination technology and new mining and oil extraction techniques fundamentally change the meaning of human habitability and economic viability in the South China Sea?
For China, the worst part about the Court’s recent jurisdiction decision may be the Court’s trivialization of the parties’ duties to negotiate.
China has called the current proceedings an “abuse of process” in part because the Philippines had steadfastly refused to negotiate any of the issues being arbitrated with China. The Court found it sufficient that the Philippines tried to push forward – albeit unsuccessfully – for China and other claimants to negotiate all disputes multilaterally.
The South China Sea has a complicated geography and history. The balance embodied in the provisions of Part XV (which includes Article 298) has been a critical factor in the decision of many states to ratify the UNCLOS. It is difficult to see what positive role the Court can play in in inserting itself into the complex web of disputes.
It has been said many times: International law is about articulating rules and regimes under which a unanimous – or very near unanimous – number of sovereigns feel obliged to be constrained, even if doing so can go against their interests some of the time, because such regimes are deemed essential for the good of all. It is not about seeking the wisdom of a few wise men to pronounce “laws” or dictate resolutions. That truism cannot be more fitting than here in the South China Sea.