The Takeaway from the South china Sea Arbitration

The dispute regarding the indulgence of China in the South China Sea, as far as it interfered with the EEZ of the Philippines, became the bone of contention in this arbitration. The pivotal question to be adjudicated by the five-member arbitral tribunal at the Permanent Court of Arbitration was regarding the compatibility of the claim of sovereignty over major portions of the South China Sea by China with the UNCLOS. The jurisdiction of the tribunal stemmed from the provisions relating to compulsory dispute settlement procedures in UNCLOS. China had objected to the jurisdiction based on the fact that it had pitched a declaration to keep out issues relating to sea and land sovereignty from compulsory arbitration. Setting aside this submission, the Tribunal decided every sub-issue relating to the case except deciding the validity of the claims of sovereignty by either state.

The Tribunal set the tone by its very first pronouncement that the historic rights China had over the South China Sea became incompatible as far as it interfered with the EEZs of other states, the moment it acquiesced to the UNCLOS. It also held that the fishing and navigating activities by China in the South China Sea did not amount to any historic right having an upper hand over and above the EEZ rights of sovereign states because the undercurrent of UNCLOS is to give precedence to the EEZ claims over some rudimentary presence. However, the most remarkable aspect of this arbitration was the interpretation of Article 121(3) of UNCLOS by the Tribunal. Reliance was placed on the application of literal interpretation of the words of the provision and a rule that the ‘feature is not a rock if it can sustain a community of people or economic activity, in its natural condition’ was elucidated. Putting the current contention on the anvil of the propounded rule, the Tribunal ruled that all the high-tide features in the Spratlys are rocks. Therefore, the major takeaway from this case was the setting up a very high threshold for proving an island to be a rock. This is in a way, closer to the intentions of the drafters of the UNCLOS. This interpretation shall go a long way in resolving the disputes relating to the inter-state claims on features like island or rocks.

To sum up, underlining various ‘mischiefs’ of China – violative of UNCLOS and international principle of respect for the sovereignty of other states – like construction of artificial islands and structures without the authorization of the plaintiff, failure to prevent Chinese fishermen from poaching endangered sea lives (leading to the violation of Articles 192 and 194 of UNCLOS), interfering with petroleum exploration of Reed Bank, prohibiting fishing by Philippine vessels, the Tribunal held that China, indeed, violated the sovereignty of the Philippines by acting in the latter’s EEZ.

References:

  1. https://www.lawfareblog.com/tribunal-issues-landmark-ruling-south-china-sea-arbitration

  1. http://www.pcacases.com/web/view/7

  1. http://kluwerarbitrationblog.com/2016/09/06/judicial-fact-finding-and-the-south-china-sea-arbitration/

Ambrish Tewari, Gujarat National Law University

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