UN Convention on the Law of the Sea (UNCLOS)

The South China Sea Arbitration Award Five Years Later

By Sourabh Gupta
Tuesday, August 3, 2021, 2:42 PM

Five years ago last month, in a landmark award, a United Nations Convention on the Law of the Sea (UNCLOS) tribunal in The Hague struck down a slew of Chinese maritime claims—and actions in defense of those claims—in the South China Sea. The tribunal also ruled that China had violated the Philippines’ sovereign rights and freedoms. 

The tribunal in Philippines v. China made four sweeping observations. 

First, it ruled that no land feature in the northern sector or the southern sector of the South China Sea that was the subject of the dispute was capable of sustaining human habitation or economic life of its own. As such, none of the features met the definition of an “island”—or as the tribunal called it, “a fully entitled feature”—within the meaning of Article 121 of UNCLOS. The effect of this finding was to limit the maritime entitlements of all features administered by Beijing (and Taipei) to no more than a territorial sea and, in turn, effectuate a de facto delimitation of much of the Philippines’ South China Sea-facing exclusive economic zone (EEZ) boundary. The finding also underscored the illegal nature of Beijing’s occupation of—much less the buildup on—Mischief Reef, given that the reef is a low-tide elevation on what is now the undisputed Philippine continental shelf. 

The Article 121 island/rock ruling was controversial at the time, since it transformed the interpretation of a “rock” in sea law from a feature that “cannot sustain human habitation or economic life of [its] own” to one that effectively hasn’t sustained a settled community of inhabitants or economic life of its own. On this questionably reinterpreted basis, Taipei-administered Itu Aba, the largest naturally occurring Spratlys feature in the South China Sea, was denied the standing of a “fully entitled feature.” Itu Aba can sustain human habitation and has served as a temporary residence for extended periods but not a permanent home. Be that as it may, this Article 121 interpretation has so far stood the jurisprudential test of time, in part because the subject matter has not featured in a subsequent contentious case. 

Second, the tribunal judged that China’s “nine-dash line” claim to “historic rights” in the South China Sea was in fact an exclusive claim of sovereign rights and jurisdiction within the Philippines’ EEZ. This, the tribunal ruled, was without lawful effect since—with no Chinese-administered insular land feature capable of generating an exclusive entitlement beyond 12 nautical miles—Beijing’s claim exceeded the geographic and substantive limits of its entitlements under the convention. The tribunal relied on four pieces of evidence marshaled by Manila—two related to fisheries and two related to resource rights—to arrive at its finding. But no piece of evidence definitively established that Chinese vessels had exercised these purported exclusive rights in the said areas. That said, the tribunal’s ruling on the nine-dash line is unimpeachable: The line simply cannot be the perimeter of China’s exclusive fishing and resource exploitation rights in the South China Sea. China’s subsequent actions on the Vietnamese and Malaysian continental shelf in 2019 and early 2020, respectively, have only reinforced the validity of the tribunal’s ruling and underscored Beijing’s continuing noncompliance. 

Third, the tribunal ruled that Beijing had violated its UNCLOS obligations by denying Filipino artisanal fishers their right to engage in traditional fishing within the territorial sea of the China-administered Scarborough Shoal. Such a local custom or tradition-based right in the territorial sea of a counterpart coastal state (in the Scarborough Shoal) was part of the “other rules of international law.” By way of Article 2(3) of the convention, the coastal state was obliged to protect these “other rules of international law,” the tribunal observed. Beijing had failed to afford this access and protection. Although this traditional fishing rights award is the least understood part of the overall award, the ruling is the third instance (following Eritrea v. Yemen and Mauritius v. United Kingdom) when an international tribunal has unequivocally confirmed that such a “historic right” enjoyed by artisanal fishers of a third state within the exclusive maritime zone of a coastal state is preserved by the convention and compatible with its purposes. 

Curiously, however, the tribunal failed to extend the geographic scope of this exercisable traditional fishing right to the EEZ of the Philippines. It ruled that with the adoption of the concept of an EEZ in the convention, traditional fishing rights were to be accorded differing treatments now across different maritime zones, since “it [was not] possible the drafters of the Convention intended for traditional or artisanal fishing rights to survive the introduction of the exclusive economic zone.” In effect, this ruling stands the convention on its head by affording a user state greater rights in the territorial sea of a coastal state (the Philippines in the territorial sea of China-administered Scarborough Shoal) as opposed to within the EEZ (where in this instance China is the user state seeking to exercise the same right in the Philippines’ EEZ). It also runs counter to the extant jurisprudential view that the “other rules of international law” apply with equal force across the exclusive maritime zones specified in the convention (Manila had argued that these “other rules of international law” applied in the territorial sea but not to the convention’s EEZ regime). In any case, this proposition is also being tested in the ongoing Ukraine v. Russia case. The tribunal was also remiss in failing to stipulate the coastal state’s prerogative to regulate without discrimination the traditional fishing right in its territorial sea, as was stipulated in Eritrea v. Yemen. This reticence has caused confusion with regard to China’s summertime fishing moratorium. Beijing typically enforces a moratorium between mid-May to early-August in “jurisdictional waters” from 12 degrees north latitude up in the South China Sea. The tribunal has failed to clarify whether Filipino fishers have access to their traditional grounds in the vicinity of the Scarborough Shoal during the moratorium. 

Finally, the tribunal found that China’s law enforcement vessels in the vicinity of Scarborough Shoal had failed to observe—and had repeatedly violated—many international navigation-related regulations, notably the Convention on the International Regulations for Preventing Collisions at Sea. Separately, Chinese fishers and Chinese-flagged vessels had even engaged in destructive activities that had harmed the marine environment. Although China’s law enforcement authorities were in a position to prevent such harm, they failed to exercise their due responsibility. Furthermore, China’s unprecedented land reclamation activities had damaged the coral reef ecosystem. By way of these willful failures, China violated the Philippines’ sovereign rights in both the northern and southern sectors of the South China Sea as well as its marine conservation-related treaty obligations, most notably the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The tribunal’s ruling on these navigation and marine environmental degradation questions is unassailable. Its ruling may have been informed by a one-sided set of expert testimony that was arranged by Manila, but Beijing was at liberty to participate in the proceedings and furnish an alternative set of facts (if it so possessed them)—and chose not to do so. 

China’s Record on Compliance: The Good, the Bad, and the Ugly 

Five years on, how does the balance sheet of China’s de facto compliance (it has ruled out de jure recognition), or lack of, with the landmark South China Sea Arbitration Award stack up? 

It ranges from the good, to the bad, to the downright ugly.

First, the good. For the first time since the South China Sea tensions burst into public view three decades ago with Beijing’s promulgation of its territorial sea law, China has gone a significant way toward acknowledging the exclusive sovereign right and jurisdiction of a counterpart claimant state within the nine-dash line. This is a significant development. In November 2018, Beijing initialed a memorandum of understanding with Manila to exploit oil and gas resources cooperatively on the latter’s continental shelf on terms that hew to the national patrimony clause of the Philippine Constitution and effectively admit its sovereign right and jurisdiction. This acknowledgment in the memorandum is only implicit—explicitly, the memorandum specifies that the activities of the two countries’ authorized enterprises “will be without legal prejudice to [their governments’] respective legal positions.” (To protect its legal interest, Manila inscribed a preambular provision stating that such cooperation “in relevant maritime areas [would be] consistent with applicable rules of international law”—the tribunal’s award, in short.) Setting the legal gymnastics aside, if the two countries’ authorized enterprises can seal the service contract (the first whereas clause of every Philippine government oil and gas service contract specifies that the resource belongs to Manila), it will mark the first instance and set a creative precedent of China bringing its development activities on the continental shelf of a counterpart claimant state within the nine-dash line into compliance with the arbitration award. If Beijing can replicate this “service contractor” model on Hanoi’s and Kuala Lumpur’s continental shelf, it could effectively take the sting out of the sovereignty-linked quarrels in the South China Sea. It will also breathe life into the joint development principle proposed by Chinese leader Deng Xiaoping in the late-1980s. 

On a lesser note, China has observed a number of red lines laid down by Manila. It has ceased to reclaim additional land in the South China Sea (Beijing has built upward, not outward); hasn’t occupied a new feature; hasn’t built structures on Scarborough Shoal; has restored Filipino artisanal fishers’ access in principle to their traditional fishing grounds near the shoal; has restricted the activities of its fishing militia on the Philippines’ continental shelf to the territorial sea of the features that it (Beijing) occupies; and has refrained in principle from interfering with Philippine resupply missions to the latter’s grounded vessel on Second Thomas Shoal (although on this last point, the tribunal reserved its opinion citing a lack of jurisdiction). And in an unusual display of goodwill, China—or rather China’s Guangdong Fishery Mutual Insurance Association—even tendered an apology to Manila in August 2019 for a boat collision incident that had occurred two months earlier.

Next, the bad. China shows no sign of vacating its occupation and buildup on Mischief Reef. Because the reef is a low-tide elevation on the Philippines’ continental shelf, regulatory power over the construction and operation of an artificial island on the reef vests exclusively with Manila. Beijing has shown no hint of reversing this illegality (to its minor credit, it has not deployed combat jets to the reef’s airstrip). On the contrary, it has asserted its sovereignty in the sea and airspace surrounding Mischief Reef. With regard to its fishing militia, Beijing continues to obfuscate on its very existence, let alone its swarming presence and purposes—even when the militia might be engaged in UNCLOS-compliant activities. This raises questions about the intent and reliability of China’s public communications. Beijing established a new administrative district covering the Spratly Islands in April 2020, and its coast guard continues to harass Filipino vessels at times on the latter’s continental shelf. Rather than being chastened by the arbitral award, Beijing still launches the occasional vituperative attack against its “unjust and unlawful” character and vows to “never accept any claim or action based on [its decisions].” It also misrepresents Manila’s suspension of the implementation of the award as a supposed “consensus” to return to “the right track of settling maritime issues through bilateral friendly negotiation and consultation.” 

Finally, to the downright ugly. As of July 12, 2016, China had claimed on paper—but had never exercised in practice—the sovereign right and jurisdiction to explore and exploit the living and nonliving resources within the exclusive economic zone and continental shelf of a counterpart claimant state in the South China Sea. Five years since, even this low bar of restraint has been shredded. Chinese vessels have brazenly conducted survey activity—an exclusive coastal state right—at points on Vietnam’s and Malaysia’s continental shelf. Those activities have no conceivable basis in the “land dominates the sea” principle. It also has in effect turned “undisputed waters” into disputed spaces. Beijing’s ostensible purpose is to discourage Hanoi and Kuala Lumpur from collaborating with international oil firms to exploit their resource entitlements within the nine-dash line, and funnel them toward a Chinese national oil company-linked development strategy. A provision to this effect is even being pressed within the code of conduct negotiations. Regardless, these Chinese survey activities fly in the face of the tribunal’s award, violate international law, and have touched off a blizzard of diplomatic protest notes by interested Western and non-Western member states

Phillipine President Rodrigo Duterte has been the difference-maker on China’s contrasting approaches to de facto compliance with the award: good-to-middling on the Philippines’ continental shelf; ugly and abusive on Vietnam’s and Malaysia’s shelf, where the underlying logic of the award applies interpretatively too. Through his own inimitable style of outreach (castigated as “defeatist”), Duterte has incentivized China to walk back an expansively drawn exclusive claim in the Philippines’ quadrant of the South China Sea, if only implicitly, that no amount of prior diplomatic browbeating and coercion of Beijing has accomplished over the past three decades. Of course, had the arbitral tribunal not ruled as overwhelmingly in Manila’s favor, it is inconceivable that China would have conceded this claim within the nine-dash line—regardless of Duterte’s softness toward Beijing or not. If Hanoi contemplates instituting its own third-party dispute settlement proceedings against Beijing at a future date, it would do well to bear in mind that, from a political standpoint, the most challenging decisions will arrive on its desk the day after the tribunal’s award lands—just as it did for Duterte