September 6, 2016

By Mark J. Valencia

The ruling by the arbitral tribunal on the Philippines' complaints against China has been highly praised and severely criticised by many nations and analysts. But few foresaw the broader and deeper legal and political implications. Indeed, the details of the decision are slowly reverberating around the world like a tsunami – leaving confusion and uncertainty in its wake.

The decision rejected China's claim to historic title or rights in the waters within its nine-dash line in the South China Sea. This was expected. But what was not fully foreseen is the likely lasting political ramifications for the region and perhaps Asia as a whole.

Indeed, the ruling has reinvigorated a test of political wills between China, which rejected the decision, and the US, which both supports the decision and may "enforce" it as part of its "rebalance" to Asia.

This is a fundamental struggle between preserving the status quo world order, which disproportionately benefits the developed world, and altering the system to the benefit of China and other developing countries.

This increased competition has, in turn, raised tensions and instability in the region with potentially serious implications for peace and human welfare. Indeed, this issue has now become a point of contention in the China-US competition for the hearts and minds of other South China Sea claimants (Brunei, Indonesia, Malaysia and Vietnam), as well as other Asean members. The pressure has produced a split in Asean, casting doubt on its viability and central role on security issues in Southeast Asia.

Worse, the contest has become contagious, spreading to China-Japan relations. Japan supported the decision and hinted that it might join the US in freedom of navigation operations in the South China Sea. In response, China stepped up pressure and tension in the East China Sea and bluntly warned Japan that it would be crossing a “red line” if it did so. Another country caught in the "squeeze" is Australia, already split politically, with burgeoning economic benefits from its relationship with China versus its historical security alliance with the US.

What was not expected was the sweeping revolutionary ruling on the legal status of various features in the Spratly Islands. Challenging conventional wisdom, the tribunal ruled that none of the features in the Spratlys – as well as Scarborough Shoal – can generate 200 nautical mile exclusive economic zones (EEZs) or continental shelves, and are at most rocks entitled to only 12 nautical miles of territorial seas.

This means EEZ and continental shelf claims based on similar features elsewhere, which were assumed to be legal “islands”, are now questionable.

Although the ruling is not binding on any nation other than China and the Philippines, it sets a paradigm-changing precedent. It also means that China’s oft-repeated proposal for joint development of resources in overlapping claim areas is moot as is a “code of conduct” for disputed areas, since there are much fewer differences in claims left to be resolved.

Article 121 of the 1982 UN Convention on the Law of the Sea (Unclos) states: “Rocks which cannot sustain human habitation or economic life of their own shall have no EEZ or continental shelf.” The tribunal interpreted this vague and ambiguous phrase in great detail, making it extremely difficult to satisfy and essentially establishing new standards.

Such features include Tok Do/Takeshima in the Sea of Japan, where sovereignty and attendant maritime zones are disputed by South Korea and Japan; the Senkaku/Diaoyus in the East China Sea – a dispute affecting potential boundaries between China, Japan, South Korea and Taiwan; and Okinotorishima and Minamitorishima in the western Pacific Ocean claimed by Japan. In all these cases, Japan's maximum boundary claims, based on the assumption that the features are legal islands, are not supported.

For the US, such features include some of the never inhabited islands in the chain that extends to the northwest of Hawaii's inhabited islands. The EEZ from these features covers a huge area and is the basis of the US' unilateral declaration of the world’s largest marine protected area – the Papahanaumokuakea Marine National Monument, spread over nearly 600,000 square nautical miles.

Uncertainty does not stop there. Even if its lawyers could defend the EEZ around Hawaii, there are several US features in the Pacific around which Washington claims both EEZs and continental shelves and which are now probably legal rocks. Of course, for the US – which has not ratified Unclos – the issue cannot be brought to arbitration under the convention's dispute settlement provisions. But that doesn't make them sacrosanct – considering the US supported the decision.

There is clearly a knock-on effect. There are many other "islands" in the world that are likely to have been turned into legal “rocks”, particularly in the Pacific and Indian oceans. This means that, over time, their sovereigns will try to hold on to their initial claim and others will try to exploit the resources in the extended jurisdictional zones that they initially were thought to generate. This will lead to political and even physical clashes.

The decision also means that more resources – especially fisheries – are now de facto in the high seas where they belong to everyone – and no one – until captured. As such, it opens up more ocean area to all countries, including China. But it may have very negative consequences for attempts to manage the fisheries. New or strengthened international regulations must be agreed.

The philosophical origins of the arbitration panel’s decision are laudable. They wished to keep faith with the concept that launched the negotiations that led to the law of the sea convention. The panel argued that it was based on the principle that the resources of the oceans – beyond natural jurisdiction – were to be the common heritage of humankind to be shared disproportionately, with the poorest nations or peoples coming first. To the panel, this meant that claims from arbitrary "islands" should be minimised and if countries did not exercise sufficient restraint, the tribunal would legally impose it. This is commendable. But it has had major unforeseen implications.

This radical interpretation will revitalise dormant disputes regarding the legitimacy of some EEZ and continental shelf claims. This decision could easily revive a "gold rush" syndrome in which countries think any real gain or loss may contain an El Dorado. It changes the potential allocation of any fisheries, and petroleum/mineral resources in the affected areas. In this situation, such claims and the hypothetical equidistant line ignoring the features must be re-evaluated.

The lesson is that what may have initially looked like a fundamental advance may have equally fundamental negative implications. In reaching its momentous decisions, perhaps the self-assumed "Lords of Law" should have delved deeper into the effects on the existing order and humanity. The decision, while adhering to a fundamental principle, has set maritime claims adrift throughout the world. International law, and the integrity of its dispute resolution mechanisms and processes, may be the ultimate losers.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China

Link:

http://www.scmp.com/comment/insight-opinion/article/2015624/why-south-china-sea-ruling-opens-can-worms-maritime-claims 

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