Friday, August 12, 2016

Who Owns the South China Sea? Misinterpretation and consequences of arbitration: a Chinese perspective

There's a bit of the sea claimed by Brunei, Malaysia, Vietnam, the Philippines, and China.
But especially China.
Why do they want it?
And how do they stake their claims?
Especially China.
Jay Foreman and Mark Cooper-Jones, the Map Men explain...

From AMTI CSIS by Xue Chen

When the tribunal deciding the South China Sea arbitration case brought by the Philippines against China issued its award on July 12, the international media seemed impressed by the landslide decision in favor of the Philippines on almost all of its claims.
Many reported that the ruling was a rebuke of China’s sovereignty claims, but this is a misinterpretation. 

The Nine-Dash Line 

A tribunal like this one, constituted under Annex VII of the United Nations Convention of the Law of the Sea (UNCLOS), can only rule on disputes concerning the interpretation or application of the convention.
Questions of sovereignty are beyond its purview.
With respect to the nine-dash line, the tribunal concluded, “China’s claim to historic rights to the living and non-living resources within the ‘nine-dash line’ is incompatible with the Convention to the extent that it exceeds the limits of China’s maritime zones as provided for by the Convention.”
The tribunal ruled on the nine-dash line only as a “claim to historic rights to the living and non-living resources” of the sea, but not as a claim to sovereignty over the land features within it, which would be beyond the tribunal’s jurisdiction.
Furthermore, the judges ruled only that China’s claim to historic rights is incompatible with UNCLOS where that claim “exceeds the limits of China’s maritime zone.”
China has never clarified the nature and extent of the rights it claims via the nine-dash line.
The inventor of the line was not the People’s Republic of China government, but rather its predecessor, the Nationalist Kuomintang government, now sitting as an opposition party in Taiwan.
The claim’s ambiguity has merit from the Chinese perspective because it helps avoid controversies that could be caused by its precise definition and leaves room for interpretation.
The arbitration now gives China an incentive to clarify the nature and meaning of the nine-dash line.

In its position paper on the tribunal’s jurisdiction, Beijing argued that “without first having determined China’s territorial sovereignty over the maritime features in the South China Sea, the Arbitral Tribunal will not be in a position to determine the extent to which China may claim maritime rights in the South China Sea pursuant to the Convention, not to mention whether China’s claims exceed the extent allowed under the Convention.” And as already mentioned, the issue of territorial sovereignty falls outside the scope of UNCLOS.

China further argued that even if the subject-matter of the case were determined to have nothing to do with sovereignty, it would still “be an integral part of maritime delimitation.” China in 2006 made a declaration, as allowed by UNCLOS, exempting itself from arbitration in disputes concerning delimitation.

From these statements, one can assume that, in addition to any historic rights claimed within it, the nine-dash line is also a claim to sovereignty over land features in the South China Sea as well as a sea boundary.
These aspects of the line are beyond the purview of UNCLOS compulsory dispute settlement procedures.
Therefore, the nine-dash line could still have a legal basis, but it needs to be further clarified.

Since the nine-dash line cannot be separated from issues of sovereignty and maritime boundary delimitation, the arbitral tribunal should have found that it lacked jurisdiction to rule on the line’s validity.
This constituted a major reason for China to reject participation in and acceptance of the arbitration from the start. 

Far-Reaching Precedents 

The tribunal’s ruling involved three other unprecedented decisions that will have far-reaching legal consequences.
First, the court ruled that China has claimed “historic rights short of title” (questions of historic title being exempted from arbitration by China’s 2006 declaration).
They found that the use of the South China Sea by Chinese fishermen and navigators in the past amounted to “the exercise of high seas freedoms,” not a special historic right, and argued that China had never exercised “exclusive control over the waters of the South China Sea or prevented other States from exploiting their resources.” This narrow definition sets a precedent that will make it very difficult for other states to assert historic rights despite any other non-exclusive authority they may have exercised over the waters in question.

Second, the arbitrators determined the legal status of land features—as rocks, islands, or submerged—without considering the fact that sovereignty over those features is disputed.
Sovereignty disputes are beyond the purview of UNCLOS and its compulsory dispute settlement procedures.
This ruling suggests that a state can institute arbitration proceedings concerning the legal status of any disputed land feature it claims.

Finally, the arbitration sets a precedent that the legal status of land features can be decided without field study or first-hand evidence.
The verdict on the status of the largest natural high-tide elevation in the Spratly Islands, Itu Aba (Taiping) Island, is the most controversial example.
Despite the fact that Itu Aba has wells with a daily output of 60 tons of fresh water and locally grown crops, the judges ruled it a rock not capable of sustaining “human habitation or economic life of [its] own” based on historical evidence.
According to the tribunal, it is therefore not entitled to an exclusive economic zone (EEZ) or continental shelf.

The decision on Itu Aba has not only aroused strong protests from Taiwan, but sets a precedent that could call undermine maritime claims made by other countries based on small land features.
For example, Japan’s Okinotorishima is much less capable of sustaining human habitation than Itu Aba, yet Tokyo claims it is entitled to an EEZ and continental shelf.
Due to these and other perceived flaws in the ruling, many Chinese approve of the foresight in Beijing’s “Four Nos” policy—non-admission, non-participation, non-acceptance, and non-implementation.
The general impression among the Chinese public is that the award was one-sided and unfair, and the nationalist mood has risen to the extent that the government has been forced to intervene to prevent protests.
Beijing has reiterated its desire to resolve the disputes by direct negotiations and work with other states in the region to maintain peace and stability.
But it remains out of the question for China to accept the arbitration ruling as a premise for future bilateral negotiations with the Philippines.
As a result, it might not be easy to calm the South China Sea anytime soon.

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