Yesterday, a Dutch arbitral tribunal issued its final award in the long-running legal battle between the Philippines and China over territorial claims in the South China Sea.

The five-member tribunal, organised by the Permanent Court of Arbitration in The Hague, decided unanimously in favour of the Philippines, finding that China’s claims to economic and historic rights in large swathes of the area were not legally founded.

The tribunal also found that China had violated the Philippines’ sovereign rights in the area, had caused severe harm to the marine environment, and had generally behaved in a manner incompatible with its dispute resolution obligations (by, for example, consistently denying the jurisdiction of the tribunal, and refusing to participate in the proceedings).

The Philippines brought the case under the United Nations Convention on the Law of the Sea (UNCLOS) back in 2013, and it was the first time the difficulties surrounding the South China Sea had come before a legal forum.

UNCLOS, which was opened for signing in 1982 and finally became effective in 1994, is the premier treaty dealing with nations’ legal rights and responsibilities on the oceans. It deals with diverse matters like free navigation through territorial waters, the laying of cables on the ocean bed, the duty of ships in international waters to render assistance, the conduct of scientific research in oceans, and – most importantly for the South China Sea – territorial claims over marine areas.

UNCLOS introduced the current tripartite division of territorial claims over oceans. At its most basic level, a state’s maritime claims are divided into:

  • Territorial waters;
  • Contiguous zone; and
  • Exclusive economic zone.

Territorial waters are all the waters (and seabed) within 12 nautical miles of the coastline of a country. In these waters, a country is sovereign, and can use any resource or make any law regarding the area (with some exceptions, like the right of innocent passage of foreign ships through the waters).

The contiguous zone is the zone a further 12 nautical miles out from the territorial waters. In this area, a country can make laws regarding things like customs, immigration and pollution.

Finally, the exclusive economic zone extends 200 nautical miles out from a country’s coastline. Within this zone, a country has exclusive rights to exploit natural resources, but other countries have navigation rights, and can also lay cables on the ocean bed.

One of the chief disputes in the South China Sea arbitration was whether certain islands claimed by the Chinese gave rise to these territorial and economic rights. In reality, the “islands” were a series of reefs, some transformed through dredging and land reclamation. The tribunal reviewed the law, and decided that these ‘artificial islands’ did not give China the territorial and economic rights that it claimed.

There is ongoing disquiet in the international community about whether China will accept the outcome of the arbitration, or whether the arbitral award may prove a trigger for further escalation in the already tense area.

The nine-year negotiation of UNCLOS (1973-1982) was the first multilateral negotiation that China was involved in, after taking over “China’s” seat at the United Nations from the Republic of China (Taiwan) in 1971.

China was a crucial player in determining the form of UNCLOS, as the Third World non-aligned nations argued with the United States and the USSR over the extent of territorial rights over coastal waters. China sided with the Third World nations, throwing its weight behind the more extensive definitions of territorial and economic rights.

Forty years later, however, it is finding that UNCLOS may not be operating quite how it would like.

The world will hold its breath to see whether the emerging superpower continues to abide by current international legal standards, or whether it begins to be more muscular in its pursuit of its national interests.

The international rule of law may hang on China’s decision.

 

— William Shrubb

Further reading

‘Press release about the tribunal’s findings‘, Permanent Court of Arbitration

‘Final award of the tribunal‘, Permanent Court of Arbitration

‘Case home page‘, Permanent Court of Arbitration

‘United Nations Convention on the Law of the Sea‘, United Nations

‘China and UNCLOS: An Inconvenient History‘, The Diplomat

‘Like it or not, UNCLOS arbitration is legally binding for China‘, East Asia Forum