Permanent Court of Arbitration (PCA) Re-Writes UNCLOS Into a Treaty That No One Agreed To, and the “you didn’t say no, so it wasn’t rape” argument of PCA
There are a lot of problems with the PCA’s recent decisions on SCS.
First, there is the jurisdiction issue, whether the PCA had the authority to decide this case, even though China rightfully opted out of arbitration. It’s an important question of consent to arbitration. If China didn’t consent to arbitration, it’s PCA’s overreach, which makes PCA a violator of the UNCLOS treaty terms.
But even if you say that’s just a procedural issue, then there is the substantive problem with the PCA’s decision, where PCA’s literally RE-wrote the UNCLOS treaty into a treaty that no one agreed to.
In effect, the PCA was given Solomen’s Choice to split a baby, but the PCA decided that all Babies are Orphans.
Beyond the question of authority, evidence, etc. used by the PCA to make its decision, there is another serious problem: PCA’s interpretation of treaty terms.
There is always a great debate among legal scholars and experts as to whether Arbitrators are even authorized to “interpret” treaty terms, or merely apply treaty terms, and if “interpretation” is allowed, how much “interpretation”.
For one, Arbitrators, including the PCA, are not technically judges. They are jurist experts used to arbitrate disputes. As such, Arbitrators’ authority to interpret laws and treaty terms are limited to previously settled and established interpretations, i.e. “apply” legal precedence and legal interpretations.
The danger comes in when some Arbitrators start to make up their own interpretations without precedence. (which is dangerous to do even for full judges). Hence, the term “Judicial Activists”.
However, some have argued that new interpretations can be made, because the precedence may come in the form of “customs”, i.e. customary international law, treatises on laws, scholar papers on laws, even generally accepted standard of meanings.
Given all of that, PCA’s ruling on SCS is still troubling, because the PCA’s ruling literally rewrote key portions of the UNCLOS under dispute, i.e. the definition of “Islands” vs. “Rocks”. And it did so without any citation to precedence or “customs”.
The key portion of the PCA’s ruling is attached at the end of this post.
To summarize the PCA’s ruling, the PCA re-wrote the definition of “Islands” and “Rocks” in Article 121(3) of UNCLOS, from paragraph 539 to 551, without any citation to any other cases that might support such interpretations, nor any evidence of any nations that accepted such interpretations.
The PCA redefined “Islands” as features that must have had previous human habitation in history, and lack of human habitation means that the feature was incapable of sustaining “economy life”.
In fact, the PCA’s own ruling acknowledge that it disagreed with BOTH China and Philippines regarding how to define an “island” from which EEZ can extend. Both China and Philippines had taken the position that having natural fresh water sources on high tide elevations is sufficient to define a feature as an “island” from which EEZ can extend (which is the predominant currently accepted definition in most nations).
Paragraph 552 and 553 of the PCA ruling is even more troubling, and it even re-wrote the Vienna Convention on Treaty Interpretation (The Law of Treaties).
The Vienna Convention provided, ““any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” shall be taken into account together with the context.
Yet, in paragraph 553 of the PCA ruling, PCA literally turn the logic upside-down, by arguing that neither parties (China, Philippines) disagreed PCA’s current interpretation, so that means they AGREED with PCA??!!
The Vienna Convention by the plain language of that clause, provided that the interpreting body (PCA here) needs to demonstrate that the “subsequent practices” matches the interpretation. And YET, the PCA says the opposite, that “nobody disagreed with me, so my new definition is accepted” argument.
It’s literally the equivalent of “you didn’t say no, so it wasn’t rape” argument.
PCA ruling portion:
iv. Conclusions on the Interpretation of Article 121(3)
539. Drawing on the foregoing consideration of the text, context, object and purpose, and drafting history of Article 121(3), the Tribunal reaches the following conclusions with respect to the interpretation of that provision.
540. First, for the reasons set out above, the use of the word “rock” does not limit the provision to features composed of solid rock. The geological and geomorphological characteristics of a high-tide feature are not relevant to its classification pursuant to Article 121(3).
541. Second, the status of a feature is to be determined on the basis of its natural capacity, without external additions or modifications intended to increase its capacity to sustain human habitation or an economic life of its own.
542. Third, with respect to “human habitation”, the critical factor is the non-transient character of the inhabitation, such that the inhabitants can fairly be said to constitute the natural population of the feature, for whose benefit the resources of the exclusive economic zone were seen to merit protection. The term “human habitation” should be understood to involve the inhabitation of the feature by a stable community of people for whom the feature constitutes a home and on which they can remain. Such a community need not necessarily be large, and in remote atolls a few individuals or family groups could well suffice. Periodic or habitual residence on a feature by a nomadic people could also constitute habitation, and the records of the Third UN Conference record a great deal of sensitivity to the livelihoods of the populations of small island nations. An indigenous population would obviously suffice, but also non-indigenous inhabitation could meet this criterion if the intent of the population was truly to reside in and make their lives on the islands in question.
543. Fourth, the term “economic life of their own” is linked to the requirement of human habitation, and the two will in most instances go hand in hand. Article 121(3) does not refer to a feature having economic value, but to sustaining “economic life”. The Tribunal considers that the “economic life” in question will ordinarily be the life and livelihoods of the human population inhabiting and making its home on a maritime feature or group of features. Additionally, Article 121(3) makes clear that the economic life in question must pertain to the feature as “of its own”. Economic life, therefore, must be oriented around the feature itself and not focused solely on the waters or seabed of the surrounding territorial sea. Economic activity that is entirely dependent on external resources or devoted to using a feature as an object for extractive activities without the involvement of a local population would also fall inherently short with respect to this necessary link to the feature itself. Extractive economic activity to harvest the natural resources of a feature for the benefit of a population elsewhere certainly constitutes the exploitation of resources for economic gain, but it cannot reasonably be considered to constitute the economic life of an island as its own.
544. Fifth, the text of Article 121(3) is disjunctive, such that the ability to sustain either human habitation or an economic life of its own would suffice to entitle a high-tide feature to an exclusive economic zone and continental shelf. However, as a practical matter, the Tribunal considers that a maritime feature will ordinarily only possess an economic life of its own if it is also inhabited by a stable human community. One exception to that view should be noted for the case of populations sustaining themselves through a network of related maritime features. The Tribunal does not believe that maritime features can or should be considered in an atomised fashion. A population that is able to inhabit an area only by making use of multiple maritime features does not fail to inhabit the feature on the grounds that its habitation is not sustained by a single feature individually. Likewise, a population whose livelihood and economic life extends across a constellation of maritime features is not disabled from recognising that such features possess an economic life of their own merely because not all of the features are directly inhabited.
545. Sixth, Article 121(3) is concerned with the capacity of a maritime feature to sustain human habitation or an economic life of its own, not with whether the feature is presently, or has been, inhabited or home to economic life. The capacity of a feature is necessarily an objective The South China Sea Arbitration Award of 12 July 2016 229 criterion. It has no relation to the question of sovereignty over the feature. For this reason, the determination of the objective capacity of a feature is not dependent on any prior decision on sovereignty, and the Tribunal is not prevented from assessing the status of features by the fact that it has not and will not decide the matter of sovereignty over them.
546. Seventh, the capacity of a feature to sustain human habitation or an economic life of its own must be assessed on a case-by-case basis. The drafters of the Convention considered proposals with any number of specific tests and rejected them in favour of the general formula set out in Article 121(3). The Tribunal considers that the principal factors that contribute to the natural capacity of a feature can be identified. These would include the presence of water, food, and shelter in sufficient quantities to enable a group of persons to live on the feature for an indeterminate period of time. Such factors would also include considerations that would bear on the conditions for inhabiting and developing an economic life on a feature, including the prevailing climate, the proximity of the feature to other inhabited areas and populations, and the potential for livelihoods on and around the feature. The relative contribution and importance of these factors to the capacity to sustain human habitation and economic life, however, will vary from one feature to another. While minute, barren features may be obviously uninhabitable (and large, heavily populated features obviously capable of sustaining habitation), the Tribunal does not consider that an abstract test of the objective requirements to sustain human habitation or economic life can or should be formulated. This is particularly the case in light of the Tribunal’s conclusion that human habitation entails more than the mere survival of humans on a feature and that economic life entails more than the presence of resources. The absence of an abstract test, however, has particular consequences (that will be discussed below) for the Tribunal’s approach to evidence of conditions on, and the capacity of, the features in question.
547. Eighth, the Tribunal considers that the capacity of a feature should be assessed with due regard to the potential for a group of small island features to collectively sustain human habitation and economic life. On the one hand, the requirement in Article 121(3) that the feature itself sustain human habitation or economic life clearly excludes a dependence on external supply. A feature that is only capable of sustaining habitation through the continued delivery of supplies from outside does not meet the requirements of Article 121(3). Nor does economic activity that remains entirely dependent on external resources or that is devoted to using a feature as an object for extractive activities, without the involvement of a local population, constitute a feature’s “own” economic life. At the same time, the Tribunal is conscious that remote island populations often make use of a number of islands, sometimes spread over significant distances, for sustenance and livelihoods. An interpretation of Article 121(3) that sought to evaluate each feature individually would be in keeping neither with the realities of life on remote islands nor The South China Sea Arbitration Award of 12 July 2016 230 with the sensitivity to the lifestyles of small island peoples that was apparent at the Third UN Conference. Accordingly, provided that such islands collectively form part of a network that sustains human habitation in keeping with the traditional lifestyle of the peoples in question, the Tribunal would not equate the role of multiple islands in this manner with external supply. Nor would the local use of nearby resources as part of the livelihood of the community equate to the arrival of distant economic interests aimed at extracting natural resources.
548. Ninth, in light of the Tribunal’s conclusions on the interpretation of Article 121(3), evidence of the objective, physical conditions on a particular feature can only take the Tribunal so far in its task. In the Tribunal’s view, evidence of physical conditions will ordinarily suffice only to classify features that clearly fall within one category or the other. If a feature is entirely barren of vegetation and lacks drinkable water and the foodstuffs necessary even for basic survival, it will be apparent that it also lacks the capacity to sustain human habitation. The opposite conclusion could likewise be reached where the physical characteristics of a large feature make it definitively habitable. The Tribunal considers, however, that evidence of physical conditions is insufficient for features that fall close to the line. It will be difficult, if not impossible, to determine from the physical characteristics of a feature alone where the capacity merely to keep people alive ends and the capacity to sustain settled habitation by a human community begins. This will particularly be the case as the relevant threshold may differ from one feature to another.
549. In such circumstances, the Tribunal considers that the most reliable evidence of the capacity of a feature will usually be the historical use to which it has been put. Humans have shown no shortage of ingenuity in establishing communities in the far reaches of the world, often in extremely difficult conditions. If the historical record of a feature indicates that nothing resembling a stable community has ever developed there, the most reasonable conclusion would be that the natural conditions are simply too difficult for such a community to form and that the feature is not capable of sustaining such habitation. In such circumstances, the Tribunal should consider whether there is evidence that human habitation has been prevented or ended by forces that are separate from the intrinsic capacity of the feature. War, pollution, and environmental harm could all lead to the depopulation, for a prolonged period, of a feature that, in its natural state, was capable of sustaining human habitation. In the absence of such intervening forces, however, the Tribunal can reasonably conclude that a feature that has never historically sustained a human community lacks the capacity to sustain human habitation.
550. Conversely, if a feature is presently inhabited or has historically been inhabited, the Tribunal should consider whether there is evidence to indicate that habitation was only possible through The South China Sea Arbitration Award of 12 July 2016 231 outside support. Trade and links with the outside world do not disqualify a feature to the extent that they go to improving the quality of life of its inhabitants. Where outside support is so significant that it constitutes a necessary condition for the inhabitation of a feature, however, it is no longer the feature itself that sustains human habitation. In this respect, the Tribunal notes that a purely official or military population, serviced from the outside, does not constitute evidence that a feature is capable of sustaining human habitation. Bearing in mind that the purpose of Article 121(3) is to place limits on excessive and unfair claims by States, that purpose would be undermined if a population were installed on a feature that, as such, would not be capable of sustaining human habitation, precisely to stake a claim to the territory and the maritime zones generated by it. The Tribunal notes that, as a result, evidence of human habitation that predates the creation of exclusive economic zones may be more significant than contemporary evidence, if the latter is clouded by an apparent attempt to assert a maritime claim.
551. The same mode of analysis would apply equally to the past or current existence of economic life. The Tribunal would first consider evidence of the use to which the feature has historically been put before considering whether there is evidence to suggest that that historical record does not fully reflect the economic life the feature could have sustained in its natural condition.
v. The Relevance of State Practice in the Implementation of Article 121(3)
552. Finally, the Tribunal recalls that Article 31(3) of the Vienna Convention provides that “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” shall be taken into account together with the context. This means that the Parties must have acquiesced in such practice so that one can speak of an agreement reached concerning the interpretation of the provision in question. Scrutinising the jurisprudence of the International Court of Justice on this issue, in particular the Advisory Opinion Concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict
553. On the basis of the foregoing, the Tribunal comes to the conclusion that as far as the case before it is concerned, there is no evidence for an agreement based upon State practice on the interpretation of Article 121(3) which differs from the interpretation of the Tribunal as outlined in the previous Sections.