EAST SEA

The East Sea after the mid-July Award (part 2)

TTXVN-VNA | 30-12-2016 | 15:38

Nam Yen island of Truong Sa (Spratly archipelago)__Photo: VNA

The Tribunal introduced 10 criteria for assessment:

1) The use of the word “rock” in Article 121.3 does not limit the provision to features composed of solid rock. The geological and geomorphological characteristics of a rock are diverse, being coral, sand or mud, provided that it is a high-tide feature.

2) The status of a feature is to be determined on the basis of its natural capacity, without external additions or modifications intended to increase its capacity to sustain human habitation or an economic life of its own.

3) The term “human habitation” should be understood to involve the inhabitation of the feature by a stable community of people for whom the feature constitutes a home and on which they can remain. Such a community need not necessarily be large, and in remote atolls a few individuals or family groups could well suffice. Periodic or habitual residence on a feature by a nomadic people could also constitute habitation.

4) The term “economic life of their own” is linked to the requirement of human habitation. Article 121.3 does not refer to a feature having economic value, but to sustaining “economic life”. The “economic life” in question will ordinarily be the life and livelihoods of the human population inhabiting and making its home on a maritime feature or group of features.  The economic life in question must pertain to the feature as “of its own”. Economic life, therefore, must be oriented around the feature itself and not focused solely on the waters or seabed of the surrounding territorial sea. Economic activity that is entirely dependent on external resources or devoted to using a feature as an object for extractive activities without the involvement of a local population would also fall inherently short with respect to this necessary link to the feature itself. Extractive economic activity to harvest the natural resources of a feature for the benefit of a population elsewhere certainly constitutes the exploitation of resources for economic gain, but it cannot reasonably be considered to constitute the economic life of an island as its own.

5) The text of Article 121.3 is disjunctive, such that the ability to sustain either human habitation or an economic life of its own would suffice to entitle a high-tide feature to an exclusive economic zone and continental shelf. However, as a practical matter, the Tribunal considers that a maritime feature will ordinarily only possess an economic life of its own if it is also inhabited by a stable human community. One exception to that view should be noted for the case of populations sustaining themselves through a network of related maritime features.  A population whose livelihood and economic life extends across a constellation of maritime features is not disabled from recognizing that such features possess an economic life of their own merely because not all of the features are directly inhabited.

6) The capacity of a maritime feature to sustain human habitation or an economic life of its own is necessarily an objective. It has no relation to the question of sovereignty over the feature.

7) The capacity of a feature to sustain human habitation or an economic life of its own must be assessed on a case-by-case basis. The principal factors that contribute to the natural capacity of a feature can be identified. These would include the presence of water, food, and shelter in sufficient quantities to enable a group of persons to live on the feature for an indeterminate period of time. Such factors would also include considerations that would bear on the conditions for inhabiting and developing an economic life on a feature, including the prevailing climate, the proximity of the feature to other inhabited areas and populations, and the potential for livelihoods on and around the feature. The relative contribution and importance of these factors to the capacity to sustain human habitation and economic life, however, will vary from one feature to another.

8) With regard to a group of features that collectively form part of a network that sustains human habitation or an economic life of its own, the Tribunal would not equate the role of multiple islands in this manner with external supply. Nor would the local use of nearby resources as part of the livelihood of the community equate to the arrival of distant economic interests aimed at extracting natural resources.

9) Evidence of physical conditions will ordinarily suffice only to classify features that clearly fall within one category or the other. If a feature is entirely barren of vegetation and lacks drinkable water and the foodstuffs necessary even for basic survival, it will be apparent that it also lacks the capacity to sustain human habitation. The opposite conclusion could likewise be reached where the physical characteristics of a large feature make it definitively habitable. The Tribunal considers, however, that evidence of physical conditions is insufficient for features that fall close to the line. It will be difficult, if not impossible, to determine from the physical characteristics of a feature alone where the capacity merely to keep people alive ends and the capacity to sustain settled habitation by a human community begins. This will particularly be the case as the relevant threshold may differ from one feature to another.

10) 10) The most reliable evidence of the capacity of a feature will usually be the historical use to which it has been put. If the historical record of a feature indicates that nothing resembling a stable community has ever developed there, the most reasonable conclusion would be that the natural conditions are simply too difficult for such a community to form and that the feature is not capable of sustaining such habitation. In the absence of such intervening forces, like war, pollution, and environmental harm, the Tribunal can reasonably conclude that a feature that has never historically sustained a human community lacks the capacity to sustain human habitation. Evidence of human habitation that predates the creation of exclusive economic zones may be more significant than contemporary evidence, if the latter is clouded by an apparent attempt to assert a maritime claim.[1]

Applying the above-said criteria, the Tribunal reached a conclusion that none of the high-tide features in the Spratly archipelago is inappropriate for human habitation or an economic life on its own, and therefore, it can create only a 12-nautical-mile territorial sea.

These criteria may also constitute a legal reasoning and departing point for the consideration and settlement of disputes over rocks of similar sizes and with historical circumstances like Rockall and Shag Rocks claimed by the United Kingdom, Okinotorishima by Japan, Clipperton in the Pacific Ocean, Tromelin in the Indian Ocean or Jabal al-Tair between Etriea and Yemen or the Paracels in the East Sea. They should be considered on a case-by-case basis as recommended by the Tribunal as regards uninhabited big islands such as Jan Mayen Island, Abel Island and Heard Island.

The Tribunal also considered the status of low-tide elevations. All states have the right to build artificial islands on the condition of respect for the jurisdiction of coastal states over their exclusive economic zones and continental shelves. Since these elevations have no status of a rock, they create no territorial sea except a safety zone of up to 500 m around them. The low-tide elevations located within 12 nautical miles of the surrounding rocks may be used as baseline points for measuring the territorial seas of these rocks. Their status may be determined on a case-by-case basis only.

With these conclusions, the Tribunal “liberated” a vast maritime zone from the dispute due to claims over overlapping maritime zones measured from the 33 rocks and some 700 low-tide elevations belonging to the Spratly archipelago. On the basis of the diagrams, the overlapping 12-nautical-mile territorial seas between the rocks are very few. This means that the number of maritime delimitation cases in the future will reduce considerably. The Tribunal also asserted that the Spratly archipelago should not be regarded as an organically linked entity but scattered rocks and low-tide elevations. Then, any calculations to claim the Spratly as an archipelago like the Kalaayan of the Philippines is unconformable with the UNCLOS. The consequence is that there will be no maritime zone that can be claimed from the baseline around the Kalaayan.

From the above conclusions, in the East Sea:

- There appear the high seas outside the claimed lines of 200-nautical- mile exclusive economic zones from the mainland and large islands of surrounding states: the Philippines, China, Vietnam, Malaysia and Brunei.

- There appears a seabed area of the Common Heritage of Mankind outside the outerlimits of the continental shelves of the surrounding states.

- In these sea areas, all states, whether coastal or landlocked, can exercise the freedom of the high seas (freedom of overflight, freedom of navigation, freedom to lay submarine cables and pipelines, freedom of fishing, freedom of marine scientific research, and freedom to construct artificial islands and other installations permitted under international law) and the right to share natural resources of the seabed under the administration of the International Seabed Authority

- The freedom of overflight, freedom of navigation, freedom to lay submarine cables and pipelines in the exclusive economic zones are respected. Ships and vessels may freely travel in the waters beyond the 12-nautical-mile territorial seas of the disputed rocks and outside the 500-meter safety zones of the low-tide elevations on which troops are stationed.

These freedoms are universally recognized, enshrined in the UNCLOS and regarded as erga omnes rights. Countries with interests may refer to the Award of the Tribunal when they engage in a dispute with either party to the arbitration. If these interests are breached, an arbitration case applying the compulsory dispute settlement mechanism and Annex VII to the UNCLOS similar to the Philippines vs. China case would be activated. The ASEAN members, which are divided into two groups of disputing states and non-disputing states without direct interest in the East Sea, can now realize at least a common interest in the high seas and Area - common heritage of mankind. Laos, a landlocked state or Cambodia, a geographically disadvantaged one, is now entitled to claim its share in the East Sea. The states that have great merchandise volumes passing through the East Sea like the US, Australia, Japan and South Korea would surely not overlook this enormous benefit. The non-acceptance and non-enforcement of the Tribunal’s Award will negatively affect the rights of the countries inside and outside the region. The recent incident around the US underwater drone seized by the Chinese Navy in the waters about 100 miles off from the Philippines Port at Subic Bay showed again the risk.[2]

Future of the ruling

Personal assessments of such a big and complicated issue as the East Sea dispute can never be comprehensive and accurate. However, from the legal arguments on the arbitration case and follow-up realities, there emerge some ideas that may be useful to share.

China’s statement neither to accept nor to obey the Award does not mean that this state will never accept and obey it in the future. After the issuance of the ruling, China has refrained from causing tension at sea, except continuing to sustain the man-made islands. It has even allowed Philippine fishermen to return to fish at Scarborough Shoal and agreed to settle disputes on the basis of international law. It has not withdrawn from the UNCLOS after considering all the pros and cons of the withdrawal. As the East Sea is of geostrategic importance to China, it will never abandon its intention to control the whole sea. Therefore, China will have to find ways to conciliate its rising position and the old world order and its intention to establish a safe strategic backyard and the respect for the marine interests of other states. The new policies of the US President-elect Donald Trump toward the TPP and Asia would create new advantages for China in the East Sea, but China could not alone challenge the international legal order. This, if happens, would undermine the image of a peacefully rising China and worry its neighbors. China proves cautious not to do anything against the Tribunal’s conclusions, except completing the construction of the seven artificial islands before issuance of the ruling. In the long run, non-compliance with the ruling could trigger new disputes with other states when they exercise the freedom of the high seas and common heritage of mankind, which could be unbeneficial to China. While still sticking to its sovereignty claims over the features located within the nine-dash line and continuing to build the low-tide elevations, China would put pressure on the other states to accept the model of “shelving disputes and developing joint exploitation” as it is doing with the Philippines at Scarborough Shoal. Bilateral negotiation would be promoted as it brings about sectional interests (like the Philippines-China negotiations in the wake of the ruling) and sets an example for China to advertise its position on the settlement of the dispute through bilateral negotiation. China has also committed with the ASEAN to early adopt a Code of Conduct in the East Sea. It should not be excluded the possibility that China will continue to build military bases on the new coral banks or establish an Air Defense Identification Zone (ADIZ) in the East Sea. This move is not free but it needs reasons to persuade the international community to accept such zone. Further, China could advocate other states to adopt a separate agreement to interpret Article 121.3 in order to reject the effect of the Award.  After the ruling was issued, only seven states have explicitly supported it. A majority of other countries have used diplomatic language such as “recognize”, “note” or “study”, demanding the involved parties to obey the ruling. These are politically calculated moves rather than provide a way of understanding that the international community does not back the ruling.

While the Philippines benefits from the ruling, it is bound to reconsider its protest against the joint commission to the Commission on the Limits of the Continental Shelf prepared by Vietnam and Malaysia, and may join them. This state could promote marine cooperation initiatives (marine scientific research and marine environment protection…) while calling investment from China. As a host country of ASEAN Summit in 2017, the Philippines could cool its relation with China. It’s not mean that Manila would deviate from or avoid the Tribunal’s ruling.[3] Countries would place importance on initiatives in the cooperative management of marine activities (conservation of marine resources, preservation of marine environment and marine scientific research) for common purposes. The negotiations on the sovereignty dispute would remain at an impasse between the two approaches: 1) on a bilateral basis and 2) what is bilateral will be bilaterally negotiated and what is multilateral will be settled multilaterally. Vietnam and China would continue their exchanges on cooperation in the waters outside the mouth of the Gulf of Tonkin pending a final solution to the Paracel issue. The ASEAN’s connecting role could be heightened in case it can act as a representative for the bloc’s interests in the high seas and heritage seabed as well as freedoms on the basis of respect for the jurisdiction of the coastal states in their exclusive economic zones and continental shelves. The ASEAN and China would further promote the COC initiative inclined to conflict management, marine security and marine activities rather than settlement of sovereignty disputes.

The sovereignty dispute remains unsettled. The ruling contributes to reducing marine disputes but this would make sense only when the parties to the arbitration case have a willingness to comply with the ruling and the countries in and outside the region exert pressure on them. The developments following the Nicaragua’s case against the US or Arctic Sunrise case show that major powers pay relative attention to the issue of saving face and a flexible diplomatic policy that helps them overcome this complex would not be a bad approach. Justice needs a long time to change awareness within the states involved in the arbitration case and for other countries to be fully aware of their rightful and valuable interests once advanced technologies permit the maximum exploitation and use of the high seas and heritage seabed. The Award would be fully enforced when the balance of forces and political circumstances change. The East Sea needs a comprehensive solution, political, economic, diplomatic, legal and military, for peace, stability and prosperity.-

 

Nguyen Hong Thao


[1] Final Award, par. 540-550 http://www.pcacases.com/pcadocs/PH-CN%20-%2020160712%20-%20Award.pdf

[2] Statement by Pentagon Press Secretary Peter Cook on Incident in South China Sea

www.defense.gov/News/News-Releases/News-Release-View/Article/1032611/statement-by-pentagon-press-secretary-peter-cook-on-incident-in-south-china-sea

James Kraska, Raul “Pete” Pedrozo, China capture US underwater drone violates the law of the sea,

https://www.lawfareblog.com/chinas-capture-us-underwater-drone-violates-law-sea

https://www.washingtonpost.com/world/asia_pacific/recent-developments-surrounding-the-south-china-sea/2016/12/18/8b9476b0-c597-11e6-acda-59924caa2450_story.html?utm_term=.d67e14e1622d

[3] https://globalnation.inquirer.net/150895/yasay-duterte-wont-deviate-south-china-sea-ruling