Arbitral victory exceeded expectations

The sweeping Philippine victory in the arbitration case over the South China Sea (SCS) exceeded my expectations. The arbitral tribunal granted 99 percent of our “submissions.” I will explain later why it was not a perfect 100 percent.

Contrary to Unclos. To be understood by lay readers, I will analyze the 501-page unanimous “award,” dated July 12, 2016, into three major parts, consistent with my column last Sunday.

First, the tribunal ruled that China’s “nine-dash line,” under which it claims “historic rights” over almost all of the vast SCS, is contrary to the United Nations Convention on the Law of the Sea (Unclos) and thus invalid. True, Chinese navigators and fishermen historically roamed the “waters” of the SCS. But it is equally true that “those of other states” did likewise.

Granting arguendo that such rights validly preexisted the Unclos, they were nonetheless “extinguished by the entry into force of the Convention,” to which China is bound as a signatory.

Consequently, the Philippines is legally and solely entitled to exploit and develop the mineral deposits, marine life and other natural resources in its exclusive economic zone (EEZ) measuring 200 nautical miles (about 370 kilometers) from its coastlines to the SCS.

Consequently also, the SCS is open to freedom of navigation for all countries, and the navy and air force of the United States, Japan, Australia and other great powers can continue to sail or fly freely thereabout.

Status of SCS features. Second, the Unclos recognizes four kinds of “features” in international waters: 1) “low-tide elevations” and 2) “submerged banks,” being below water at high tide, generate no maritime rights; 3) “rocks,” being above water at high tide, generate a territorial sea of 12 nautical miles; and 4) “islands,” which in their natural condition can sustain human habitation, generate an EEZ and a “continental shelf.” No amount of reclamation or human work can change the legal status of such features.

The tribunal held that none of the features claimed or occupied by China in the Spratlys is an “island.” Not even Itu Aba, which, as I wrote last Sunday, is occupied by Taiwanese soldiers. Hence, the Philippines can fully and freely enjoy its EEZ, without any overlap of any Chinese EEZ.

The tribunal agreed that Scarborough Shoal, located off the shore of Zambales, and three features in the Spratlys are “rocks,” but disagreed with the Philippines’ claim that Gaven Reef North and McKennan Reef (located also in the Spratlys) were low-tide elevations; instead, it said they are “rocks” also.

Further, the tribunal explained that since Scarborough “generates an entitlement to a territorial sea, its surrounding waters do not form part of the EEZ, and traditional fishing rights were not extinguished by the Convention.” Consequently, China “violated … the traditional fishing rights of Philippine fishermen by halting [their] access to the Shoal.” The tribunal added that, like the Filipinos, the Chinese may also continue enjoying their equal traditional fishing rights there.

Third, the tribunal held that China “violated the Philippines’ sovereign rights with respect to its EEZ and continental shelf” when it “(a) interfered with Philippine petroleum exploration at Reed Bank, (b) purported to prohibit fishing by Philippine vessels within the Philippines’ EEZ, (c) protected and failed to prevent Chinese fishermen from fishing within the Philippines’ EEZ … and, (d) constructed installations and artificial islands…”

The tribunal also found that “China’s recent large scale land reclamation and construction of artificial islands … has caused severe harm to the coral reef environment … [and that] Chinese fishermen have engaged in the harvesting of endangered sea turtles, coral, and giant clams…” It also lamented the lawlessness of “Chinese law enforcement vessels at Scarborough Shoal … [that] sought to physically obstruct Philippine vessels from approaching or gaining entrance to the Shoal.”

In addition to these three major items, the tribunal held that “China’s large scale land reclamation and construction of artificial islands” had aggravated the dispute. It however denied a Philippine request that China be advised “to comply with its duties under the Convention,” saying that it was unnecessary to do so. Because of, among others, this denial, the grant of equal fishing rights to Chinese fishermen and the tribunal’s ruling on the “rock” status of Gaven Reef North and McKennan Reef, I graded the Philippines’ victory only 99, not 100, percent.

Enforcement. China maintains that the tribunal has no jurisdiction over the dispute; ergo, it will not follow the decision. Instead of using provocative saber-rattling responses, the Duterte administration laudably counseled restraint and chose diplomacy and peaceful negotiation.

The United States also used lack of jurisdiction in refusing to honor the June 27, 1986, decision of the International Court of Justice directing it to pay reparations for its support of the Contra rebels against Nicaragua. It even vetoed a call by the UN Security Council and ignored a resolution of the UN General Assembly supporting Nicaragua. In the end, however, the dispute was settled peacefully through diplomacy and negotiation.

Diplomacy and negotiation were also used by Mauritius to convince the United Kingdom to obey an arbitral decision issued on March 18, 2015, regarding the Marine Protected Area around the Chagos Archipelago in the Indian Ocean.

I believe that, like those two cases involving the United States and the United Kingdom, our dispute with China can be peacefully resolved.

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