September 7, 2015
By Shona Yean, Summer Research Intern at the Centre for Public Policy Studies.
The continued validity of Grotius’ doctrine of the mare liberum (The Free Sea) has never been in greater jeopardy than in today’s resource-rich South China Sea, where the competing territorial ambitions of China, the Philippines, and a host of other coastal states have been brought to the forefront of international attention following the Philippines’ bold endeavour to check China’s ‘creeping invasion’ by instituting proceedings before the International Tribunal for the Law of the Sea (ITLOS).
The stage is set for a legal battle of fabled proportions - analogous to a David and Goliath battle among the international community.
Representatives from the Philippines remain cautiously optimistic they will succeed in upholding their interests in the South China Sea despite the many legal and political obstacles standing in their way. The biggest of these is China’s emphatic rejection of the tribunal’s compulsory jurisdiction over the dispute. China is relying upon Article 298(1)(a)(i) of the United Nations Convention on the Law of the Sea (Unclos) to exclude itself from the tribunal’s jurisdiction.
“[...] a State may, [...] declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes, [including] (a)(i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations [...]”
In view of this restriction on jurisdiction, the Philippines has framed its claims in such a way so as to steer clear of express allusions to maritime delimitations or zones. Nevertheless, it appears that much of the relief sought will implicitly necessitate some consideration of boundaries and limits.
This includes declarations that China has infringed the Philippines’ freedom of navigation and unlawfully claimed and exploited the resources of the Philippines’ continental shelf and exclusive economic zone (EEZ).
This brings us to the pivotal question: should these resources and the rights attending them be attributed to the Philippines or China? Perhaps, as was suggested by one commentator, the solution to circumventing this jurisdictional constraint lies in adopting a very narrow conception of delimitation.
This would mean that as long as the tribunal refrains from directly determining the limits of maritime zones, it should remain free to determine the contents of these zones, (including islands, reefs, etc.) and as a necessary consequence, decide to which state these coveted features rightfully belong.
In any event, while the tribunal continues to grapple with complex questions of jurisdiction and competence, it falls to the individual to contemplate the substantive elements of the dispute. Any analysis to this end inevitably entails an examination of the provisions of Unclos that are concerned with delineating maritime limits.
The 12 nautical miles of territorial sea extending from the coastline is the only area in which any state is able to exercise sovereignty in accordance with Sections 2 and 3 of Unclos. Beyond the territorial sea lie the contiguous zone and the exclusive economic zone (EEZ). These measure 24 and 200 nautical miles from the coastline respectively. Here, Articles 33 and 56 guarantee sovereign rights, but not sovereignty.
Freedom of navigation is the key
This means that while the state is afforded “sovereign rights within its demarcated EEZ for the purpose of exploring and exploiting […] the waters superjacent to the seabed and […] the seabed and its subsoil,” as well as exclusive jurisdiction to establish and use artificial islands and conduct marine scientific research, these rights remain subject to the fundamental freedoms of the high seas as enshrined in Article 87. Freedom of navigation is the key here.
However, Article 60(7) explicitly provides that “[a]rtificial islands, installations and structures [...] may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.” Thus we need to discern the fine but fundamental distinction between sovereignty and sovereign rights in relation to China’s ambitions in the South China Sea.
This is also a distinction reflecting an underlying conceptual shift away from a state-centred paradigm of international law to a cosmopolitan model, an approach to international law which places the common needs of the international community above the individual interests of any one particular state. In this way, although still a cornerstone of international law, state sovereignty is no longer inviolable.
The above explains the situation from a strictly legal perspective. However, as is usually the case, the situation on the ground tells a dramatically different tale. Despite its legal status as a UNCLOS contracting party and notwithstanding the above geographic and substantive restrictions, China unequivocally lays claim to ‘absolute sovereignty’ over all areas of the South China Sea falling within the broad sweep of its unilaterally implemented nine-dash line.
In 1995, China commenced its territorialisation of the Mischief Reef - an archipelago in the South China Sea. Notably, Mischief Island lies only 150 miles from the Philippines’ Palawan Island, but is located 600 miles away from China’s southernmost province, Hainan. More recent developments in the region reveal yet more subtle means of effecting the ‘creeping invasion’.
Apart from claiming islands already in existence, much to the distress of the Philippines, China has also engaged in land reclamation and other construction projects of unprecedented scale and at an alarming pace.
As of July 29, 2015, China has dredged around 2,000 acres of land, while at the same time transforming reefs, rocks and atolls into full-fledged islands that will be used as military airstrips. This has fuelled fears of the eventual establishment of an ‘Air Defence Identification Zone’ by China. Thus, it is understandable that all such maritime activities may be construed as blatant attempts at extending the boundaries of China’s territorial waters.
Although Article 60(8) of Unclos seems to preclude this outcome by stipulating that “[a]rtificial islands, installations and structures do not possess the status of islands; [t]hey have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf,” given the limited regard the nation has already displayed for Unclos’ provisions, it seems clear that if China’s actions are permitted to go unchallenged, they will ultimately serve to lend much needed credence and legitimacy to the nation’s rather tenuous claims that are currently premised primarily on the nation’s historical ties to the region.
This brings us to what has often been argued as the principal weakness inherent to international law: that the law can never be truly divorced from political reality. It then gives rise to a mismatch between theory and implementation. It remains an unfortunate fact that observance of international law is never guaranteed and that the act of acceding to a convention may ultimately hold more symbolic than practical value.
Even where desirable, compliance with international law provisions clearly cannot be compelled, particularly in this case where the tribunal stands at risk of causing China’s complete withdrawal from Unclos and undermining of the entire International Law of the Sea framework.
This also prompts the question: beyond the seemingly feeble threat of provoking international public outcry, what other mechanisms exist to induce conformity to international law? As has been argued, this is a war that will inevitably be fought on two fronts, one legal, and the other political. As such, it may ultimately prove that the side with better strategy rather than superior legal muscle will prevail.
With regards to the unfolding political battle, the Philippines may have to rely on the United States (an ally equally opposed to China’s maritime ambitions) given the threat such claims pose to their own considerable military interests in the region. The US, in coordinating support against China, have already reached out to other Asia Pacific giants, namely Australia and Japan.
Whatever the final outcome of the legal battle, however, the decision will be a seminal one serving to test the ability and strength of the regulatory and institutional structures of Unclos, and their ability to reign in a recalcitrant and seemingly intractable gargantuan of the international community.
However, let’s not for a moment suppose that the impact of the decision will not be limited to China and the Philippines. The case also has significant implications for other claims that include Malaysia’s, as well as the nine other countries also vying to either gain a foothold in, or establish their own strongholds in the South China Sea.
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