In the arbitration, Manila
seeks rulings on three interrelated matters. First, none of the insular
features in the South China Sea — be it the Scarborough Shoal in the northern
sector of the Sea or the Spratly Islands in the southern sector — are capable
of generating an entitlement to an exclusive economic zone (EEZ). They are
‘rocks’ at best, which generate a territorial sea at most.
Second, as there are no
overlapping entitlements in these waters, Beijing’s land reclamation activities
in the southern sector of the South China Sea, and law enforcement actions
across both sectors, have interfered with Manila’s sovereign rights and freedoms
in its EEZ.
Finally, China’s claims
based on ‘historic rights’ within the ‘nine-dash line’ have no basis in UNCLOS
and under international law.
Manila presented 15 specific
submissions for redress. In its ruling, the Tribunal admitted (some with reservations)
14 of them. But this should not be seen as vindicating Manila’s arguments.
Despite one significant victory and a few marginal rulings in its favour,
Manila is likely to come up empty-handed for the most part in the final award.
The key driver of the
Philippines’ legal filing in January 2013 was a jurisprudential innovation laid
down by the International Court of Justice (ICJ) in November 2012. In Nicaragua
v Colombia, the ICJ found that a small maritime feature — and even an
‘island’ — situated on the ‘wrong side’ of the median line, and many nautical
miles removed from any such similar feature, tended to produce a cut-off
effect. This disproportionately
disadvantaged the opposite state’s coastal projection-based
entitlement. It ruled that such a feature must be enclaved during the course of
delimitation — that is, its entitlement restricted to a 12 nautical mile sea at
most.
In 2016, the Tribunal
appears poised to sustain this ‘enclaving’
argument regarding the Scarborough Shoal. The shoal is an isolated feature that
resides deep within the Philippines’ coastal projection but is administered by
China. Although Nicaragua v Colombia was issued in the context of
an overlapping maritime delimitation, the Philippines–China
Tribunal observed that a dispute over claimed entitlements should not
automatically be conflated with one of delimitation. The former was adjudicable
in the rarer instances where an overlap in the claims is lacking. The
Scarborough Shoal is more than 200 nautical miles from any claimed feature in
the South China Sea. It was therefore excluded from Beijing’s Article 298 sea
boundary delimitation-related opt-out and is presumably liable to enclaving.
This action will effectively
place the northern sector of the Sea adjacent to the
metropolitan island of Luzon, including its exploitable hydrocarbon
resources, beyond the zone of entitlement generated by the shoal and firmly
within Manila’s exclusive jurisdiction. But Beijing can still argue that the
overlapping entitlement from its claimed Nanshan Island in the Spratlys
empowers it to exercise sovereign
rights and jurisdiction to exploit a share of the vast Reed Bank
hydrocarbon bounty.
Nicaragua v Colombia also foreshadows the limits to Manila’s legal entrepreneurialism. In 2012,
the ICJ, recalling that international law did not prescribe any minimum size
that a land feature must possess in order to be considered an ‘island’,
accorded this status to a feature just 0.7 metres above sea level at high tide.
In 2016, the Philippines–China Tribunal will find that every
Beijing-administered feature in the Spratlys group resides within a 200
nautical mile radius of a Chinese-claimed ‘island’.
This means that the
Tribunal, due to the overlap, is barred from determining the entitlements of
each of these features in the southern sector of the South China Sea as they
fall outside its jurisdiction. Let alone agree with Manila’s contention that no
feature in the Spratlys warrants an entitlement beyond that of a ‘rock’, it
will be unable to find that Beijing’s land
reclamation activities and law enforcement actions have violated Manila’s
exclusive rights and freedoms. This southern sector will persist as a patchwork
of competing jurisdictions. As for the rush of artificial island-building by
China, each instance — whether on a low-tide or high-tide elevation — is blatantly legal.
Finally, the Tribunal’s
findings on China’s ‘historic rights’ claims to the waters within the nine-dash
line may astonish its many detractors. As long as the historical access and
enjoyment practices of traditional Chinese fishermen within the perimeter of
the nine-dash line was continuous, reasonable and certain and is considered a
‘local custom or tradition’, these practices are not qualified by the
Convention. They are instead governed by the rules of general and customary
international law. And so long as these practice-based rights are exercised
non-exclusively by traditional Chinese fishermen and are not backed by the long
arm of Chinese enforcement in foreign EEZs, the South China Sea littoral
states are obliged to pay due regard to these Chinese-held rights
within each of their exclusive maritime zones created by the Convention.
But Beijing bears a prior
obligation to lay out a cognisable ‘historic rights’ based claim to the waters
within the nine-dash line. It must limit the scope of its assertion to practices
that have been continuous, reasonable and certain. Ironically, Manila also
claims such local custom-based traditional fishing rights in the territorial
sea of the Scarborough Shoal and is likely to receive a favourable hearing.
Neither Beijing nor Manila
will walk away dejected in 2016. The same cannot be said of Vietnam if the
Tribunal confirms the nine-dash line and the scope of China’s overlapping
entitlements-based opt-outs. Hanoi should not lodge belligerent filings as an
interested third party within the Tribunal’s setting. Instead, it should sit
down with Beijing and sort out its mutual differences on overlapping
entitlements, obligations and jurisdiction in this contested waterway.
Sourabh Gupta is a senior
research associate at Samuels International Associates, Inc.
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