Water, Oil, and International Law: South China Sea Disputes and the July 2016 Decision of the United Nations Convention on the Law of the Sea (UNCLOS) Arbitral Tribunal
An Arbitral Tribunal constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) issued on 12 July 2016 in The Hague a much-awaited Decision on maritime disputes in the South China Sea[i]. The parties are the Philippines and the Peoples’ Republic of China (PRC), although China has consistently refused to accept or participate in these proceedings. Both states are UNCLOS signatories, which they ratified in 1984 (the Philippines) and 1996 (China). The case was submitted by the Philippines in January 2013, following the 2012 Scarborough Shoal standoff with the PRC and its subsequent occupation by Chinese vessels. The Shoal is a triangle-shaped chain of rocks and coral reefs, 137 miles off the coast of Luzon, the Philippines’ main island. This geographical position would place it therefore, according to UNCLOS provisions, within the Philippines’ Exclusive Economic Zone.
The Philippines vs. the Peoples’ Republic of China is a sensitive legal as well as political case, which recent events have only made potentially more explosive. In October last year the Permanent Court of Arbitration in The Hague, acting as Registry to UNCLOS, announced that the Tribunal had jurisdiction over the case[ii]. China strongly contested this decision. The PRC refused to acknowledge the Tribunal’s right to arbitration, and repeatedly declared that it would not abide by its ruling.
There is a long history of clashes over fishing rights and the exploitation of seabed natural resources behind this case. The Philippines’ decision “to take China to Court”[iii] was finally triggered by the Chinese closure of the Scarborough Shoal and similar attempts to oust the Philippine Navy from the Second Thomas Shoal. The latter is another maritime feature the island nation claims to be within its continental shelf range. Bringing these military and political standoffs to a head, on 22 January 2013 the Philippines made use of its rights under Annex VII of the United Nations Convention on the Law of the Sea and instituted arbitral proceedings against the PRC “with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea”[iv]. The PRC swiftly rejected and returned the Philippines’ Notification through a Note Verbale in which it restated its own position over the issue[v].
There is much at stake in this controversy, not only for the two countries involved, but also for regional security in South East Asia, the East China Sea clashes with Japan and, in general, for the future of a rules-based international order. The US justifies its presence in the area through its interest in ensuring openness of access to a highly important waterway as well as its security treaties with Japan and the Philippines. In 2011, the US and Vietnam signed a Memorandum of Understanding on Advancing Bilateral Defense Cooperation[vi]. However, strategic great power behaviour is not the only potential source of this newfound regional insecurity. International treaty law is changing the institutional framework of these interactions, indirectly instigating the possible nationalization of the formerly high seas. According to a policy paper published by the European Parliament’s Directorate-General for External Policies (DG EXPO), the new international rules defining territorial waters, exclusive economic zones and continental shelves could see as much as 41% of the entire ocean surface claimed by coastline states. This is a water-covered territory which amounts to 29% of the Earth’s entire surface and is roughly equivalent to the planet’s emerged land[vii]. Inadvertently, laws that were supposed to help settle conflicts over natural resources might end up triggering more such clashes. A new race for control over the (formerly) open seas could see future international disputes more likely to be fought on water rather than on land.
Some political scientists have anticipated this instability, attributing contemporary security challenges to rising competition among former and emerging regional powers. The growing assertiveness of China in international affairs as well as Russia’s annexation of Crimea would seem to fulfill the expectations of those who, in the 1990s, predicted the end of unipolarity and the advent of multipolarity[viii]. It could be indeed argued that we are suffering from the effects of a rebalancing of international power in the age of multipolarity. This new period would be characterized by renewed competition over resources and military power.
Geopolitics is not however the only approach that can advance plausible explanations for this current surge in regional tensions. Discourses of national and religious identities are back on the international political agenda as potential triggers of recent conflicts. The intertwinment of identity politics and the struggle over resources has only heightened the complexity of contemporary security challenges and the obstacles facing international negotiators. Diplomats are increasingly confronted with intractable clashes, whose historical and symbolic implications as well as economic dimensions could render obsolete traditional conflict management mechanisms. For instance, Jean-Marie Guéhenno, president and CEO of International Crisis Group as well as former United Nations Under Secretary-General for Peacekeeping Operations, has recently argued in a commentary for Carnegie Europe that conflict is key to understanding migration. And, according to Guéhenno, conflict can only be properly dealt with through multilateralism, stronger institutions as well as the enforcement of international humanitarian and human rights law[ix]. This new type of legal humanism is therefore touted as a potential way forward out of the morass of contemporary wars.
However, this approach is challenged by empirical evidence. The role of international law in the South China Sea case is rather baffling. While policymakers such as Guéhenno place their trust in international norms and institutions, the Arbitral Tribunal’s decision brings UNCLOS into the potentially explosive mix of regional geopolitics. An International Crisis Group Report suggests that over the past twenty years growing energy needs in all coastline states have not only heightened regional tensions, but also reignited old historical grievances[x]. The immediate causes of recent disagreements are Chinese artificial island-building activities in the South China Sea and the PRC’s so-called “9-dash line”. The “9-dash line” is a map detailing maritime boundaries, which was drawn in 1947 by (at that time) the Republic of China, shortly after Japan relinquished its wartime annexation of islands in the region. By invoking their long history of exploring, navigating, and fishing in these waters, the Chinese claim most of the South China Sea islands and territory for the PRC. Maritime features such as islands, rocks, shoals, atolls, and reefs, some of which are permanently submerged, are viewed by China as traditionally belonging to the mainland[xi]. These claims are disputed by Vietnam, Malaysia, Brunei, the Philippines, and Taiwan. The latter exercises its sovereignty over the island of Taiping, the largest among the Spratlys prior to China’s artificial island-building. Complicating matters further is international trade. According to the South China Sea WWW Virtual Library, an online resources project hosted by Middlebury College (United States), over 500 million people live along the sea’s coastline in ten different countries[xii]. The South China Sea is a major trade route, with most Chinese exports channeled through its waters. Some figures estimate the total yearly trade at 5 trillion US dollars, together with a potential 11 billion barrels of oil, 190 trillion cubic feet of natural gas and 12 percent of the global fisheries catch in natural resources[xiii].
The Law Might be Clear, and Yet Fails to Clarify
China’s new international assertiveness has been attributed either to an old imperialistic vision of the country’s right to control its Southern Sea or to the Communist Party’s use of the “nationalism card” in order to strengthen its political legitimacy domestically[xiv]. UNCLOS provisions are however also partially to blame for the current resurgence of regional tensions. Articles 55-75 define Exclusive Economic Zones (EEZ) by indicating their size, i.e. 200 nautical miles from the baseline where the territorial sea is measured, the rights and duties they generate for the sovereign state. Article 121 codifies the definition of an island as “a naturally formed area of land, surrounded by water, which is above water at high tide” (Art.121, para. 1), distinguishes the latter from a rock “which cannot sustain human habitation or economic life of their own” (Art. 121, para. 3) and decides that only islands shall be entitled to a territorial sea, a contiguous zone, an exclusive economic zone, and a continental shelf (Art. 121, para. 2). There is a marked difference therefore, resource-wise, between a “Rock” and an “Island”, a fact which might explain why China has been so eager lately to build artificial islets in the South China Sea. Formerly submerged reefs have become, almost overnight, fully-fledged islands, whose flat relief allows the building of much prized airstrips.
The legal rules that have partially sparked this new island race might be relatively clear, but they are certainly not set in stone. The international community adopted UNCLOS during a third round of negotiations which lasted 10 years. The Convention only came into force in 1994, and the US is not a party to it. Some commentators argue that allowing a 200-nautical miles size for Exclusive Economic Zones has led to a new round of sea-grabbing behaviour by emerging world powers like China, either keen on “securing its backyard”[xv] or simply trying to exploit the legal rights granted under UNCLOS to the EEZs.
The Tribunal rejected in its Award China’s historical claims over the so-called “9-dash line”. Moreover, the large scale land reclamation and artificial island-building were found in some cases to have “violated the Philippines sovereign rights in its exclusive economic zone”[xvi] and to have caused “severe harm to the coral reef environment”[xvii] by failing “to protect and preserve”[xviii] the habitat of endangered or threatened species. Chinese fishermen had exploited on a “substantial scale” the depleted stocks of sea turtles, coral, and giant clams, with the PRC showing no political will to stop their actions[xix].
Feelings are running high…
The Award of the UNCLOS Arbitral Tribunal was met with some clamorous rejections. The Chinese Foreign Affairs Minister not only contested the Decision and the Tribunal’s legitimacy under international law, but insinuated that the judges might have accepted bribes[xx]. In the days following the announcement, China officially made public its testing of two more airfields built on artificial islands in the Spratlys, bringing their total number to three[xxi]. Its actions stirred some fears that the islands could become militarized and that China was indeed considering implementing an air defense zone over the sea[xxii]. The Chinese diplomacy had already begun its soft power offensive in the days preceding the ruling. The Egmont Royal Institute for International Affairs together with the Embassy of the PRC in Belgium hosted a Panel Discussion on the South China Sea[xxiii]. The event brought together an exclusive group of scholars and experts from China and Europe. Reaching out to a broader audience appears to be one of the public relations strategies aimed at fostering consensus over the PRC’s right to exert its sovereignty in the South China Sea. Soft power however is matched by ‘hard’ geostrategic action. At the Shanghai Summit of the Conference on Interaction and Confidence-Building Measures in Asia, Chinese President Xi Jinping presented in May 2014 a New Asian Security Concept in which he emphasized the need for a regional framework of security cooperation, a formulation most commentators interpreted as a message against American presence in the two Chinese Seas[xxiv]. The Philippines’ stance amid the clamor has been more ambivalent. The recently elected Rodrigo Duterte has chosen an unlikely course of action, by signalling in September that he was willing to strengthen the Philippines’ relationship not with the United States, but with Russia[xxv].
Whether for better or for worse one outcome becomes, however, gradually indisputable:international legal rules are steadily gaining in importance as potential governance mechanisms in international relations. Constant references to ASEAN’s failed attempts to issue a Code of Conduct in the South China Sea hint at the significance all stakeholders place on self-regulation. The rise of legal humanism, under the shape of international humanitarian, human rights, and more recently international criminal law, shows as well that policy proposals aiming to increase the degree of legalization in international affairs are accompanied by similar developments in global discourses. Could the predicted age of multipolarity include, paradoxically, more international law? Would such changes bring about, in the long run, international order and peace or, as the wrangling over South China Sea’s resources suggests, would they increase political and military tensions? The follow-up to the UNCLOS Tribunal’s Decision points out, at least for now, in the latter direction.
[i]Permanent Court of Arbitration. 2016. Award, PCA Case N° 2013-09 In the Matter of the South China Sea Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China, The Hague, 12 July 2016.
[ii]Permanent Court of Arbitration. 2015. Award on Jurisdiction and Admissibility, PCA Case N° 2013-09 In the Matter of the South China Sea Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China, The Hague, 29 October 2015.
[iii]International Crisis Group. 2015. “Stirring up the South China Sea (III): A Fleeting Opportunity for Calm”. Asia Report N°267, 7 May 2005, p. 17.
[iv]Permanent Court of Arbitration. PCA Case Repository: The Republic of Philippines v. The People’s Republic of China, Case Number 2013-19. Retrieved 16 June 2016 at: http://www.pcacases.com/web/view/7;.
[vi]US Department of State. 2016. US Relations with Vietnam, Fact Sheet, 25 August 2016. Retrieved on 23 Oct. 2016 at: http://www.state.gov/r/pa/ei/bgn/4130.htm.
[vii]Directorate-General for External Policies, Policy Department. 2014. In-Depth Analysis: The Struggle for Control of the East China Sea, September 2014, DG EXPO/B/PolDep/Note/2014_158, §2.3, p. 17.
[viii]Layne, Cristopher. 1993. The Unipolar Illusion: Why New Great Powers Will Rise. International Security 17:5-51.
[ix]Guéhenno, Jean-Marie. 2016. Conflict is Key to Understanding Migration. Carnegie Europe, 13 May 2016. Retrieved on 23 October 2016 at: http://carnegieeurope.eu/strategiceurope/?fa=63578.
[x]See for example on “China’s March to the Sea”: International Crisis Group. 2016. “Stirring up the South China Sea (IV): Oil in Troubled Waters”, Asia Report Nº275, 26 January 2016, p. 5-11.
[xi]Valencia, Mark. J. 2012. “High-Stakes Drama: The South China Sea Disputes”. Global Asia 7(3): 58-73, p. 68.
[xii]The South China Sea, An Online Resource. Information retrieved at: http://www.southchinasea.org/.
[xiii]Ashraf, Sajjad. 2016. “What happens now in the South China Sea?”. East Asia Forum, 23 July 2016. Retrieved on 16 October 2016 at: http://www.eastasiaforum.org/2016/07/23/what-happens-now-in-the-south-china-sea/.
[xiv]DG EXPO, “The Struggle for Control of the East China Sea”, 2014, p. 4.
[xv]Zand, Bernhard. 2016. “Südchinesisches Meer: Eine Weltmacht sichert ihren Hinterhof“. Der Spiegel, 7 Juni 2016. Website: http://www.spiegel.de/politik/ausland/suedchinesisches-meer-chinas-expansion-provoziert-die-usa-a-1096129.html.
[xvi]Permanent Court of Arbitration. 2016. “The South China Sea Arbitration (The Republic of the Philippines v. the People’s Republic of China)”, Press Release, 12 July 2016, The Hague, p. 2.
[xx]Ku, Julian. 2016. “China’s Vice-Minister for Foreign Affairs casually slanders the South China Sea Arbitral tribunal”. Opinio Juris (Blog), 26 July 2016. Retrieved on 26 July 2016 at: http://opiniojuris.org/2016/07/26/chinas-vice-minister-for-foreign-affairs-casually-slanders-the-south-china-sea-arbitral-tribunal/.
[xxi]The Japan Times. 2016. “Jetliners test South China Sea airstrips; ex-brass says US. may need to defend reefs off Philippines”, 14 July 2016. Retrieved 14 July 2016 at: http://www.japantimes.co.jp/news/2016/07/14/asia-pacific/jetliners-...brass-says-u-s-may-need-defend-reefs-off-philippines/#.V4e_TyjNXvJ.
[xxii]The New York Times. 2016. “China’s definace in the South China Sea”, 14 August 2016. Retrieved on 15 August 2016 at: http://www.nytimes.com/2016/08/14/opinion/sunday/chinas-def...he-south-china-sea.html?smid=fb-nytopinion&smtyp=cur&_r=0.
[xxiii]“The South China Sea issue: history, law & geopolitics”, 21 June 2016, Seminar. Egmont Palace, Petit Sablon 8bis, 1000 Brussels. Organizers: The Egmont Royal Institute for International Relations and the Embassy of China in the Kingdom of Belgium.
[xxiv]Takagi, Seiichiro. 2014. “Xi Jinping’s New Asian Security Concept”. AJISS-Commentary. The Association of Japanese Institutes of Strategic Studies, 27 August 2014, No. 204: 1-4, p.1. Retrieved at: http://www.jiia.or.jp/en/commentary.
[xxv]Rinna, Anthony. 2016. “Can Duterte’s diplomacy have it all?”. East Asia Forum, 15 October 2016. Retrieved 15 October 2016 at: http://www.eastasiaforum.org/2016/10/15/can-dutertes-diplomacy-have-it-all/.