After the South China Sea arbitration

For China to continue on its current trajectory as an economic and political power in Asia, it must realise that its power is inextricably linked to increased access to oceans near and far for resources and transit

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is supposed to be the constitution of the oceans because it establishes important principles on how ocean resources will be allocated and disputes settled. What the negotiators of the LOS Convention never anticipated is that two of the five permanent members of the UN Security Council would, in the case of the United States, not ratify the treaty, or would, in the case of China, disregard many of the most important features of the Convention including its dispute procedures.
China has made no bones of the fact that it regards the current arbitration case brought by the Philippines to be a legal nullity because of Beijing’s “undisputed” sovereignty of the features in the South China Sea (SCS). Yet China wrote and published in December 2014 a polished Western-style legal defense analysis of its positions. A decision by the Hague-based arbitration panel is expected in any day.
Some analysts of this topic fail to appreciate the nuance of international legal practice, in which tribunals only decide the questions that have been put before them and do not “freelance” into areas which have not be raised by one of the litigants. In this particular case, the Philippines’ very talented legal team has been scrupulous in pleading the case in a limited way so that the tribunal is never asked to adjudicate ownership or sovereignty. But if the Tribunal were to rule that Gaven Reef, McKennan Reef (including Hughes Reef), Second Thomas Shoal, Mischief Reef, and Subi Reef are all considered low-tide elevations, then it must logically follow that China would have no right to occupy those features since low-tide elevations are considered part of the continental shelf (of either the Philippines or Taiwan) and are not subject to another state’s appropriation. (The question put forth on Johnson Reef, Cuarteron Reef, Fiery Cross Reef and Scarborough Shoal is whether these features are rock (or high tide elevations) or islands within the meaning of article 121 of UNCLOS. If a rock, they are entitled to a 12 nautical-mile territorial sea versus 200 nautical miles for a full-fledged island.)
At the end of the day, the arbitral panel is likely to rule that the five features listed above are low tide elevations and that Reed Bank and Second Thomas Reef are part of the Philippine Con­tinental Shelf. The other listed features including Mischief Reef, Subi Reef and McKennan Reef (including Hughes Reef) will also likely be classified as low-tide elevations by the panel, but it will defer judgment on whether they are part of the Philippine Continental shelf because they could be within the EEZ of Itu Abu. They may, for example, in the case of McKennan Reef – which has been the site of a massive PRC reclamation project – declare that the PRC is without legal authority to occupy those features. The panel will also likely rule that Scarborough Shoal is a rock entitled to the 12 nautical-mile territorial sea and that the PRC has no authority to exclude Philippine fisherman from waters beyond the 12 nautical-mile territorial sea (but within the larger Philippine EEZ). The panel will probably not tackle the nine-dashed line matter since the PRC has never published the precise coordinates of that claim in its domestic law.
However, the panel will probably issue an admonition that there is no legal basis for a state to claim a large swath of ocean based on a theory of historic rights. Put another way, historic rights might apply in general international law disputes over sovereignty over terra firma, but when it comes to rights over waterspace, UNCLOS is the single international law on this topic. Vague assertions of historic rights is not part of UNCLOS.
UNCLOS Article 290 has a provision entitled “provisional measures,” which is vaguely similar to the contempt power of U.S. courts. In any event, the creative Philippine legal team could seek provisional injunctive actions against China in the above areas.

The writer holds an adjunct faculty appointment at the George Washington University School of Law

After the South China Sea arbitration

For China to continue on its current trajectory as an economic and political power in Asia, it must realise that its power is inextricably linked to increased access to oceans near and far for resources and transit

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is supposed to be the constitution of the oceans because it establishes important principles on how ocean resources will be allocated and disputes settled. What the negotiators of the LOS Convention never anticipated is that two of the five permanent members of the UN Security Council would, in the case of the United States, not ratify the treaty, or would, in the case of China, disregard many of the most important features of the Convention including its dispute procedures. China has made no bones of the fact that it regards the current arbitration case brought by the Philippines to be a legal nullity because of Beijings undisputed sovereignty of the features in the South China Sea (SCS). Yet China wrote and published in December 2014 a polished Western-style legal defense analysis of its positions. A decision by the Hague-based arbitration panel is expected in any day. Some analysts of this topic fail to appreciate the nuance of international legal practice, in which tribunals only decide the questions that have been put before them and do not freelance into areas which have not be raised by one of the litigants. In this particular case, the Philippines very talented legal team has been scrupulous in pleading the case in a limited way so that the tribunal is never asked to adjudicate ownership or sovereignty. But if the Tribunal were to rule that Gaven Reef, McKennan Reef (including Hughes Reef), Second Thomas Shoal, Mischief Reef, and Subi Reef are all considered low-tide elevations, then it must logically follow that China would have no right to occupy those features since low-tide elevations are considered part of the continental shelf (of either the Philippines or Taiwan) and are not subject to another states appropriation. (The question put forth on Johnson Reef, Cuarteron Reef, Fiery Cross Reef and Scarborough Shoal is whether these features are rock (or high tide elevations) or islands within the meaning of article 121 of UNCLOS. If a rock, they are entitled to a 12 nautical-mile territorial sea versus 200 nautical miles for a full-fledged island.) At the end of the day, the arbitral panel is likely to rule that the five features listed above are low tide elevations and that Reed Bank and Second Thomas Reef are part of the Philippine Continental Shelf. The other listed features including Mischief Reef, Subi Reef and McKennan Reef (including Hughes Reef) will also likely be classified as low-tide elevations by the panel, but it will defer judgment on whether they are part of the Philippine Continental shelf because they could be within the EEZ of Itu Abu. They may, for example, in the case of McKennan Reef which has been the site of a massive PRC reclamation project declare that the PRC is without legal authority to occupy those features. The panel will also likely rule that Scarborough Shoal is a rock entitled to the 12 nautical-mile territorial sea and that the PRC has no authority to exclude Philippine fisherman from waters beyond the 12 nautical-mile territorial sea (but within the larger Philippine EEZ). The panel will probably not tackle the nine-dashed line matter since the PRC has never published the precise coordinates of that claim in its domestic law. However, the panel will probably issue an admonition that there is no legal basis for a state to claim a large swath of ocean based on a theory of historic rights. Put another way, historic rights might apply in general international law disputes over sovereignty over terra firma, but when it comes to rights over waterspace, UNCLOS is the single international law on this topic. Vague assertions of historic rights is not part of UNCLOS. UNCLOS Article 290 has a provision entitled provisional measures, which is vaguely similar to the contempt power of U.S. courts. In any event, the creative Philippine legal team could seek provisional injunctive actions against China in the above areas. The writer holds an adjunct faculty appointment at the George Washington University School of Law