Second of 4 parts
AT the core of the arbitral tribunal’s errors in its ruling was its refusal to recognize that the dispute between China and the Philippines involved sovereign claims over territory. The Philippines’ lawyers though deviously tried to package the suit as involving which country has the right maritime entitlements such as exclusive economic zones (EEZ) if such exist in the South China Sea (SCS) under the provisions of the United Nations Convention on the Law of the Sea (Unclos).
They did so because they knew full well that neither the tribunal nor any international panel nor the Unclos has the authority to rule on territorial disputes between nations.
“The tribunal should have got below the surface of the Philippines’ claims, but it did not,” Chris Womersley, an international law expert who has been an adviser to the British government on territorial issues pointed out. (In “The South China Sea: The Award of the Tribunal in the Case Brought by Philippines Against China — A Critique.”)
Similarly, Oxford University professor on public international law Antonios Tzanakopoulos pointed out: “The dispute between the Philippines and China is obviously over sovereignty over… features in the SCS, and only relatedly over maritime zones and the entitlements that the relevant features generate.”
Tzanakopoulos explained: “Questions of sovereignty over land [and insular] territory do not fall within the scope of the Unclos, and could thus never constitute disputes ‘concerning the interpretation or application’ of the Convention… The Philippines was of course acutely aware of this, and so was at pains to ‘package’ the dispute as one concerning the interpretation of Article 121 of the Convention on the regime of islands.”
“The tribunal failed to recognize that the fundamental dispute is about the sovereignty over the features in the South China Sea, and that the status of the features, such as whether they are low-tide elevations or ‘rocks,’ is a question which can only logically be answered once the sovereignty dispute has been resolved,” the professor pointed out.
The American lawyers’ legal strategy for getting the tribunal to rule that China had no legal basis in its occupation of eight reefs in the Spratlys and of Scarborough was to have it rule on the maritime entitlements of these features according to Unclos provisions.
The tribunal declared that four out of the eight features occupied by China in the Spratlys are “low-tide elevations,” or features, which are out of the water only at low tide.
These, under Unclos, therefore “do not generate entitlements to a territorial sea, exclusive economic zone, or continental shelf and are not features that are capable of appropriation.” These are Subi Reef, Gaven Reef (South), Hughes Reef and Mischief Reef. If these are not capable of appropriation, the implication is that China cannot claim them.
The tribunal, however, pointed out that Subi Reef, Gaven Reef (South) and Hughes Reef lie within 12 nautical miles of the high-tide feature of Sandy Cay (Son Ca for the Vietnamese), Namyit Island; and Sin Cowe Island, respectively. The tribunal therefore withheld judgment on whether the Philippine EEZ covers these three features, since they are within the 12-mile territorial sea of the three islands, which are claimed and occupied by Vietnam who is not a party to the arbitration suit.
As a result, the tribunal could declare only the Chinese-occupied Mischief Reef as within the EEZ, and that China has no right to it under Unclos. (It also declared Second Thomas Shoal, which we call Ayungin as such, but this feature has been controlled by the Philippines since 1999 when it grounded a World War 2 vintage ship to serve as outpost for a dozen Navy men.)
As to the remaining five Chinese-occupied features in the Spratlys — Gaven Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef — as well as Scarborough Shoal, the tribunal declared that while these are high-tide elevations, or out of the water even during high tide, these are classified as “rocks” under Unclos provision 121(3), which do not generate an economic zone or continental shelf.
Strangely though, the tribunal did not rule that these Chinese-occupied features are within the Philippines EEZ, and therefore was silent on the Philippines’ — and the US’ — protest that China built huge artificial islands with installations on reefs, that could be converted into military facilities.
The tribunal merely ruled that based on its finding land reclamation and construction of artificial islands, installations and structure resulted in severe, irreparable harm to the coral reef ecosystem in those areas.
But in its 748-page rebuttal of the tribunal’s award issued in December 2017, the Chinese Society of International Law claimed that its conclusion on environmental damage was based on faulty data. It pointed that the “research” was done within only 17 days and was not based on an actual investigation of the reefs China had built installations on but on other geographical sites such as the Great Barrier Reef and the Port of Miami. The research was also based on satellite images posed at the website of an American think-tank.
The Philippine victory therefore involved only Mischief Reef, which the tribunal claimed as within its EEZ, and which China cannot claim sovereignty over since it is a low-tide elevation “incapable of appropriation.”
But Mischief Reef and the other seven features China occupies in the Spratlys were determined only as located within the Philippines’ EEZ only in March 2009, through Republic Act 9022, called the “Baselines Law,” passed in March 2009.
China’s claim on these low-tide elevations and rocks is based not on claims for each feature but its claim declared even before World War 2 — and even before the modern era — and that the entire Spratlys as a unit, an archipelago that includes all the features there, is part of its sovereign territory it calls Nansha Qúndǎo, administratively under its Hunan province since 1958.
The reefs were all occupied by China in 1988 and then, in the case of Mischief Reef, in 1995 — many years before the Philippines claimed in 2009 that these were within its EEZ.
The Chinese though are to blame for many people’s failure to understand that China claims Nansha as a unit, or as, to use the Unclos term, a regime of islands. This is because Nansha Qúndǎo isn’t drawn in their maps as a clearly defined area but shown in Chinese maps as islands and reefs with Chinese names which with its adjacent waters are, in particular, shaded to mark its extent. China did announce the boundaries of Xisha, or the Paracel Islands, but only in 1996 when it defined the archipelago’s baselines. China in that year also announced it would soon declare the baselines around its Qúndǎo but so far hasn’t done so.
Even as it stated in several parts of the ruling that it cannot rule on issues of sovereignty, the tribunal nevertheless did so, and denied China’s sovereignty over those four low-tide elevations in the Spratlys, disguising such rule by using the words “not capable of appropriation.”
Womersley emphasized: “It is noteworthy that there seems to be no precedent for an international tribunal to consider the status of a feature when the territorial sovereignty over that feature is disputed, indeed hotly contested. During the hearing, [tribunal] Judge Pawlak asked the Philippines’ legal team whether they could quote any precedent ‘when entitlements to maritime features were decided separately from sovereignty over them.’ The Philippines’ team promised to revert on this point, but there is no sign in the award that they were able to discover a precedent.”