WHITNEY LOHR—This summer, an arbitral tribunal established under the United Nations Convention on Law of the Sea (UNCLOS) decided a dispute concerning maritime rights and sovereignty in the South China Sea. The Philippines approached the tribunal armed with an international team of agents and legal advocates specializing in the Law of the Sea. China’s strategy was quite the opposite—its team was comprised of no one. For years leading up to the decision, China largely ignored the tribunal’s summons under the persistent and defiant proposition that the arbitral tribunal lacked jurisdiction to hear the case. Despite a unanimous, sweeping victory in favor of the Philippines on July 12, 2016, China has maintained its obstinate position in ignoring the legal impact of the decision. China’s reaction raises major questions concerning the effect of a legally binding but unenforceable decision and its global implications.
Sea Sick: The Territorial Dispute
China’s nine-dash line was first mapped by the Chinese government after World War II. The image below, taken from the arbitral award itself, maps China’s own representation of the nine-dash line as of 2009. The nine-dash line formed the basis of China’s “historic claims” to resources in the South China Sea. By claiming the territory inside this strange U-shaped line, China also claimed unbridled access to 3.5 million square kilometers in the western Pacific Ocean, home to a “crucial” shipping lane, some of the world’s best fisheries, a flourishing and diverse coral reef system, and “substantial oil and gas resources.” In recent years, China’s territorial claim to the South China Sea has also resulted in the construction of artificial islands.
Part V of UNCLOS covers the exclusive economic zone (EEZ). Under UNCLOS, a country has sovereign rights to living and non-living resources, and jurisdiction with regard to the construction of artificial islands and installations, marine scientific research, and the preservation of the marine environment within its EEZ. The EEZ extends two hundred nautical miles from land, including from islands. Because islands generate an EEZ, the “island” status of areas inside China’s nine-dash land is hotly disputed. Rock formations do not generate an EEZ and the legal effect of labeling them as such means the EEZ of the Philippines extends to cover the territory China makes “historical claim” to.
Bridging Troubled Waters: The Decision on the Merits
On October 29, 2015, the five-judge panel of Law of the Sea Experts found jurisdiction under UNCLOS Annex VII, Article 9 despite the non-appearance of China. As a result, the tribunal unanimously decided in favor of the Philippines on July 12, 2016, on “every significant point.” The award was nearly five-hundred pages long and its language was powerful. The nine-dash line was unlawful. China “permanently destroyed” evidence of the natural composition of rocks and reefs by building islands. Itu Aba, the “largest natural feature in the disputed Spratly Islands,” was a merely a “rock,” not an island under Article 121 of UNCLOS, and accordingly was not entitled to its own EEZ. China had violated the Philippines’ sovereign maritime rights by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to prevent Chinese fishermen from fishing in the zone. In addition, China had harmed the marine environment through construction of artificial islands and aggravated a dispute between the parties through its actions in the region.
Calming Seas or an Endless Storm? The Aftermath of the Decision
China continues to avoid the implications of the sweeping decision, claiming the decision is invalid and without binding force. However, even if the award is not enforceable, China’s initial reaction, issuing a series of immediate press releases on behalf of various government officials and agencies likely prepared before the decision was announced, indicated an altered posture. The “historical” nine-dash line was either notably absent from or only mentioned in passing in the five press releases. Critically, the releases were ambiguous enough to open the door to future negotiations with other countries in the region. With new and unpredictable leaders in both the Philippines and the United States and the changing relationship between the Philippines, the United States, and China, only time will tell how the world will calm the seas.