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INTERNATIONAL LAW OF THE SEA

Tim Stephens ’S CLAIMS DASHED is Professor of International Law and ARC Future Fellow at IN the Sydney Law School, University of Sydney and Fellow of the 6 St ARBITRATION James Hall International Law Practice Group. By Tim Stephens

n 12 July 2016, an arbitral The sought a ruling on four tribunal (the Tribunal) matters: established under the 1982 First, what effect UNCLOS has on United Nations Convention • An UNCLOS arbitral tribunal O has issued its unanimous China’s claims to historic rights within on the Law of the Sea (‘UNCLOS’) the nine-dash line; issued its unanimous award in the award in The South China Second, whether certain maritime South China Sea Arbitration between Sea Arbitration between the Philippines and China. features claimed by China and the the Philippines and China. The Tribunal Philippines should be characterised agreed with most of the Philippines’ • The Tribunal agreed with most under UNCLOS as islands, rocks, low- arguments, including that China’s claim of the Philippines’ arguments, tide elevations or submerged banks; to historic rights within a ‘nine-dash including that China’s claim Third, the legality of China’s activities line’ encompassing most of the South to historic rights within a in the South China Sea, including China Sea is contrary to UNCLOS and ‘nine-dash line’ encompassing the construction of artificial islands, exceeds China’s maritime entitlements. most of the South China Sea which, it was said, interfered with the The decision clarifies several provisions is contrary to UNCLOS and Philippines’ sovereign rights and which of UNCLOS, most notably article 121 exceeds China’s maritime harmed the marine environment; and concerning islands, which provides entitlements. Fourth, whether China’s activities that mere rocks incapable of sustaining • The South China Sea after the arbitration was commenced, human habitation or economic life Arbitration is one of the including large-scale land reclamation may only generate a 12 nautical mile most complex and significant and artificial island construction, territorial sea and not a 200 nautical decisions rendered by an unlawfully aggravated the dispute mile (‘EEZ’) international court or tribunal between the parties. or continental shelf. in the international law of Jurisdiction The South China Sea Arbitration carries the sea. major significance for the parties to the China objected to the proceedings arbitration and to the other littoral states and took no part in them, claiming in the South China Sea. December 2014 setting out its view of that the Tribunal lacked jurisdiction. the factual and legal issues in dispute. China argued that the subject-matter of the arbitration related to territorial History In China’s absence, the Tribunal sovereignty, a topic beyond the scope The South China Sea Arbitration took steps to satisfy itself fully that it of UNCLOS, and furthermore that was commenced by the Philippines possessed jurisdiction over the dispute, China could rely on optional exclusions against China in 2013. The Tribunal and to assess whether the Philippines’ from the jurisdiction of UNCLOS had previously issued an award on claims were well founded in fact and law tribunals in relation to maritime jurisdiction and admissibility on 29 (including by appointing independent boundary delimitation and historic October 2015 deciding most issues of experts to provide reports to the rights (UNCLOS, article 298). Most of jurisdiction, while deferring several for Tribunal on technical points). these issues were addressed in the determination at the merits phase. Tribunal’s 2015 award on jurisdiction The Permanent Court of Arbitration in The Philippines’ claims and admissibility, with the remainder The Hague served as the registry for the The South China Sea is a contested and determined in the merits award. proceedings. complex sea semi-enclosed by Brunei, In summary, the Tribunal concluded Both the Philippines and China are Indonesia, China, the Philippines, that it enjoyed jurisdiction as the parties to UNCLOS, and are bound and , and which is dispute concerned the interpretation or by the provisions of the Convention scattered with an array of islands and application of UNCLOS and was not a including those which establish a system other features including reefs, shoals, dispute relating to territorial sovereignty of compulsory third-party dispute cays and rocks, many of which are or maritime boundary delimitation. settlement (except in relation to certain claimed by multiple states. China claims While the Tribunal accepted it could not rule on sovereignty disputes, it could defined exemptions). a number of these features and also rule on the law of the sea implications of China neither accepted nor participated asserts historic rights within a U-shaped, in the arbitral proceedings, but did nine-dash line that embraces much of release a detailed ‘position paper’ in the South China Sea. 

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sovereignty. And so it could determine This detailed interpretation ), the largest feature in the whether an outcrop of land in the South and which is administered China Sea is an island, rock, low-tide of [the definition of an by Taiwan. elevation, or submerged feature, from which then flow legal consequences for island under] article 121 is China’s activities maritime entitlements. highly significant as there The Tribunal determined that a number The Tribunal found that China could has not previously been of features, including , are not avail itself of the exception from submerged at high tide and therefore jurisdiction with respect to disputes close judicial consideration because of their location they are concerning ‘historic title’. This was part of the Philippines’ exclusive because it was found on the evidence of this provision of UNCLOS. economic zone and continental shelf that China’s claims in the South China where the Philippines possesses Sea were at most to historic rights to exclusive jurisdiction with respect to the resources within the nine-dash line, territorial sea. It was noted that China the establishment and use of artificial and not to historic title or ownership of has substantially modified many reefs islands, installations and structures these waters (at [229]). through major land reclamation and (UNCLOS, arts 56, 60 and 80). Nine-dash line construction activities but that under China’s activities with respect to UNCLOS it is the natural condition Having characterised China’s claims Mischief Reef and other features in the of the feature that is determinative. within the nine-dash line to be an Philippines’ EEZ and continental shelf The evidence (including from an assertion of historic rights to resources involved the unlawful construction expert hydrographer appointed by the beyond the maritime zones China is Tribunal) showed that Scarborough of artificial islands (at [1038]) which entitled to under UNCLOS, the Tribunal Shoal, , Fiery Cross interfered with the Philippines’ assessed whether such claims were Reef, Johnson Reef, McKennan Reef exploration (at [716]), consistent with UNCLOS. and Gaven Reef (North) were high- unlawfully affected fishing by Philippines The Tribunal reviewed the history tide features (at [382]), while , vessels and permitted fishing by Chinese of UNCLOS and concluded that the , Mischief Reef and Second vessels which violated the Philippines’ Convention intended to allocate Thomas Shoal were low-tide elevations sovereign rights within its exclusive comprehensively the rights of states to that generate no maritime zones economic zone and continental shelf (at maritime zones, that China’s assertions (at [383]). [753]-[757]). were incompatible with the Convention, The Tribunal then assessed whether and to the extent that China possessed The Tribunal also found that China any of the high-tide features claimed by any historic rights, that these had been violated the Philippines’ traditional China were islands with the capacity to superseded when UNCLOS entered into fishing rights within 12 nautical miles of generate a 200 nautical mile exclusive force (at [262]). In any event, the Tribunal , a high-tide feature economic zone and continental shelf. found that the evidence did not support (at [814]). China’s contention that historically it The Tribunal elaborated criteria for The impact of China’s activities on had exercised exclusive control over the features to meet the definition of an the marine environment in the South South China Sea and its resources (at island under article 121, by reference China Sea was considered by the [278]). The effect of these conclusions is to: the objective capacity of a feature that China’s nine-dash line has no valid in its natural condition, to sustain Tribunal in light of the evidence of three basis at international law. either a stable community of people independent experts. The Tribunal or economic activity that is neither noted that the South China Sea ‘includes Features in the South China Sea dependent on outside resources nor highly productive fisheries and extensive A central dispute in the South China purely extractive in nature (at [475]- coral reef ecosystems, which are among Sea Arbitration was the geographical [553]). This detailed interpretation of the most biodiverse in the world’ (at article 121 is highly significant as there status of certain reefs and other features [823]). The Tribunal found that China’s has not previously been close judicial claimed by China. Whether features land reclamation and artificial island consideration of this provision of are either fully submerged, low-tide construction resulted in severe harm UNCLOS. elevations only exposed at high tide, or to the marine environment, clearly in high-tide features that are permanently The Tribunal observed that while violation of China’s obligations under features may have been transformed above water, is relevant for determining articles 192 and 194 UNCLOS to protect whether they may be appropriated through land reclamation, and have and preserve the marine environment, under international law and generate military personnel stationed upon them, and to prevent, reduce and control maritime entitlements. Moreover, only this did not establish the capacity of pollution (at [993]). high-tide land features that are true the features to sustain, in their natural islands within the meaning of article 121 condition, a stable community. It was also found that China had allowed of UNCLOS may generate an exclusive The Tribunal concluded that all high- its nationals to catch endangered species economic zone and continental shelf. tide features in the Spratly Islands were including turtles, giant clams, and coral, The Tribunal considered whether coral ‘rocks’ for the purpose of article 121 and utilising highly destructive methods reefs claimed by China were above therefore generate no more than a 12 including ‘propeller chopping’ (at [992]). water at high tide, in which case they nautical mile territorial sea (at [625]). The Chinese government was aware of generate at least a 12 nautical mile This included Itu Aba (also known as (and actively facilitated) these activities.

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China was also found to have violated evidence of the natural condition of the [T]he Tribunal found that article 94 of UNCLOS relating to features in dispute (at [1179]). maritime safety as Chinese law This constituted a clear breach of the evidence did not enforcement vessels had repeatedly and China’s obligations under UNCLOS, support China’s contention dangerously approached Philippines’ including article 300 which requires vessels seeking entry to Scarborough parties to fulfil in good faith the that historically it had Shoal (at [1109]). obligations under the Convention and exercise their rights in a manner which exercised exclusive control Aggravation of the dispute does not constitute ‘an abuse of right’ over the South China The Tribunal observed that parties to (at [1181]). an international dispute are under an Sea and its resources (at Conclusion obligation to refrain from aggravating [278]). The effect of these or extending the dispute pending its At 500 pages in length, and covering determination (at [1166]-[1173]). an extensive body of fact and law, the conclusions is that China’s South China Sea Arbitration is one of the The evidence indicated that during most complex and significant decisions nine-dash line has no valid the proceedings, China had intensified rendered by an international court or construction of artificial islands on tribunal in the international law of the basis at international law. several features in the Spratly Islands sea. The Tribunal’s detailed evidentiary and effectively created a fait accompli at evaluation, its extensive interpretation Mischief Reef through the construction of key and contested provisions of of a large artificial island within the UNCLOS (including article 121), and Philippines’ exclusive economic zone the relevance of the decision to the and continental shelf (at [1177]). China diplomatic relations of the parties and also aggravated the dispute with respect other states in the South China Sea all to the protection and preservation of mark out the award for its enduring the marine environment by causing importance. very significant and irreparable harm to It now remains to be seen what practical coral reef ecosystems (at [1178]), and impact the award will have for the it also ‘undermined the integrity of the parties and for other states laying claim proceedings’ by permanently erasing to the South China Sea.

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