- The South China Sea Arbitral Tribunal AwardPolitical and Legal Implications for China
The release of the Arbitral Tribunal’s award on 12 July 2016 brought to an end the arbitration case on the South China Sea which the Philippines had unilaterally brought against China in January 2013. This thoroughly one-sided award ruled that many of China’s maritime claims in the South China Sea were contrary to the United Nations Convention on the Law of the Sea (UNCLOS) and had thereby violated Philippine sovereign rights and freedoms. The ruling does not mean that the dispute between the Philippines and China is over. But it does have political and legal implications for China, especially its future approach to managing and eventually resolving the country’s maritime disputes.
When it comes to international disputes, China has a strong preference for negotiating or consulting directly with the other party directly concerned. This preference owes much to Chinese culture and history. China has always advocated bilateral negotiations as the most practical means of solving problems between states. China’s perception of the role of international courts in dispute settlement is also negative. Thus far no dispute between China and any other [End Page 356] state has been brought to the International Court of Justice (ICJ) or other international tribunals, except the South China Sea arbitration case. In treaties to which it is a party, China has usually made reservations about the clause of judicial settlement by the ICJ. As for UNCLOS, China declared on 7 September 2006 under Article 298 the exclusion of certain disputes (such as those concerning maritime boundary delimitation, historic bays and titles and military use of the ocean) with other countries from the jurisdiction of international arbitration.1
Accordingly, China’s position on the South China Sea arbitration case, namely non-participation and non-acceptance, is consistent with its 2006 declaration. China considered the act of initiating arbitration proceedings against it to be unfriendly and inimical to Sino–Philippine relations. Beijing’s strong opposition to the arbitration case was clearly articulated in its Position Paper of 7 December 2014, in which it argued against the jurisdiction and admissibility of the Arbitral Tribunal.2
The ruling has four main implications for China. First, the award suggests that China’s history-based claims within the nine-dash line do not include a claim to “historic title” (which bear the characteristics of sovereignty and should have been excluded from the Tribunal’s jurisdiction in accordance with China’s 2006 declaration). Rather, China’s claim is one of “historic rights” which the Tribunal ruled to be an exclusive claim of sovereign rights and jurisdiction in the exclusive economic zone (EEZ) of the Philippines. The Tribunal judged China’s claims to be contrary to UNCLOS and without lawful effect because these exceeded the geographic and substantive limits of China’s maritime entitlements under the Convention. This finding has several major flaws. The Tribunal interpreted the nine-dash line as a line of “historic rights”, even though China has never made a public statement about the legal meaning of this line. And, even supposing that China regarded the line representing “historic rights”, the Tribunal took a different position on China’s claims than the Philippines’. It stated that Manila is entitled to reach beyond the text of the Convention to enjoy non-exclusively exercised traditional fishing rights in the territorial sea of Scarborough Shoal, which is part of the body of general international law preserved by UNCLOS. However, the Tribunal denied China’s historic rights in foreign EEZs and therefore its reasoning was unsatisfactory. Its limitation of artisanal fishing rights to territorial seas rather than other exclusive maritime zones [End Page 357] constituted an arbitrary narrowing of the jurisprudence created in Eritrea v Yemen.3
Second, the ruling provides that no land feature in the Spratlys, or Scarborough Shoal, is capable of sustaining human habitation or an economic life of its own.4 As such, none of the land features in the Spratlys meets the definition of an “island” within the meaning of Article 121 of UNCLOS. In other words, there is no entitlement to an EEZ or a continental shelf...