Permanent Court of Arbitration (PCA) constituted under Annex VII to the 1982 United Nation Convention on the Law of the Sea (UNCLOS) on 12 July 2016, issued an Award, ending a nearly 3-year long process arbitration instituted by the Philippines against China concerning certain issues of disputes in the East Sea.
The Philippines’ claims
The East Sea dispute is one of the most complicated disputes over sovereignty and territorial waters in the world today.
On sovereignty, Vietnam has declared to have full historical and legal evidence to confirm its sovereignty over Hoang Sa and Truong Sa archipelagos. However, China (including Taiwan) has also claimed its sovereignty over Hoang Sa islands and in fact is illegally occupying this entire archipelago. China (including Taiwan), the Philippines, Malaysia, and Brunei have also claimed sovereignty over all or some islands in Truong Sa archipelago. In addition, the Philippines and China had sovereignty dispute over Hoang Nham (or the Scarborough/ Huangyan Shoal). To solve such disputes, a Court of Arbitration may be used if all parties to the disputes agree to file the case to such court of arbitration(1). Due to the fact that China refused to accept jurisdiction of any court or arbitration to handle sovereignty disputes, courts and arbitrations cannot handle sovereignty disputes in the East Sea. The Philippines, thus, did not bring the sovereignty dispute case to Arbitration under Annex VII.
On territorial waters, coastal nations along the East Sea have defined their territorial waters under the 1982 UN Convention on the Law of the Sea (UNCLOS). Thus, coastal countries have sovereignty over two maritime areas: internal waters and territorial waters and the rights to sovereignty and jurisdiction over three sea areas, including the contiguous zone, the exclusive economic zone (EEZ) and continental shelf (2). The Philippines considers UNCLOS as the sole legal basis for countries to claim sovereignty over their maritime zones and their rights to sovereignty and jurisdiction. However, China, in addition to UNCLOS, wants to claim “historic rights” based on what it called common international laws and international practices which are excluded from provisions of UNCLOS. Thus, China has claimed “historic rights” over the territorial waters within what it called the “nine-dash line” shown in an internal map by the Taiwanese Administration in 1947 (3). From this difference, the Philippines filed a case asserting several claims, the first is the unlawful nature of China’s “nine-dash line.” Whereby, the Philippines sought a declaration by the court that China and the Philippines’ claims could only be governed by UNCLOS and that China’s claims over the sovereign rights, jurisdiction “historical rights” over the East Sea waters within “nine-dash line” is contrary to UNCLOS (4).
Besides, due to its claim of sovereignty over Hoang Sa and Truong Sa Islands, China confirmed its sovereignty over the contiguous zone and the sovereignt rights and jurisdiction over relevant waters of these two archipelagos (5). Meanwhile, the Philippines holds that the geographical features at Truong Sa Archipelago need to be classified under UNCLOS and according to which they are at best are rocks not entitled to the exclusive economic zones and continental shelf. From the differences in the explanation and application of UNCLOS on waters and legal status of those features, the Philippines’s second claim is on the legal status of geographical features at Truong Sa archipelargo. Whereby, the Philippines selected features and sought the court’s determination that Scarborough Shoal, Chu Thap (Fiery Cross) Reef, and Chau Vien (Cuateron) Reef are qualified as rocks and generate entitlement only to Territorial Sea no broader than 12 M; and that Gac Ma (Johnson) Reef, Vanh Khan (Mischief) Reef, Co May (Second Thomas) Shoal, Subi Reef, McKennan Reef and Gaven Reef are submerged features thus do not generate entitlement as China’s claims and seizure. In particular, Vanh Khan (Mischief) Reef and Co May (Second Thomas) Shoal belong to the EEZ and continental shelf of the Philippines (6).
To realize its absurd claim to sovereignty and territorial waters, China has intensively conducted many activities in the East Sea. The most typical ones are its unilateral ban on fishing and clashes in Scarborough Shoal. It has taken gaining control and prevented traditional fishing activities of Filipino fishermen at this shoal, announced the opening of 9 petroleum blocs in Vietnam’s continental shelf, cut sea cables, harassed and obstructed oil and gas exploration and exploitation activities of the Philippines on Co Rong (the Reed Bank) and of Vietnam’s Binh Minh 02 and Viking Ships in the exclusive economic zone of Vietnam, conducted large-scale construction and installations on some features at Truong Sa Archipelago, planted Haiyang Shiyou 981 oil rig to Vietnam’s EEZ and continental shelf, detained Vietnamese fishermen and intentionally clashed, collided and prevented Vietnamese ships… All these activities were conducted to change the status quo in China’s favour and consolidate its illegal claims. Therefore, the Philippines asserted the third claims relating to unlawful activities conducted by China in the East Sea. The basis for the lawsuit is that China’s actions encroached on the EEZ and continental shelf of the Philippines, failed to abide by marine environmental protection obligations, violated regulations on safe navigation and failed to fulfill the obligation to restrain, thus worsening disputes.
The above-mentioned three key issues have been explained clearly in its 15 submissions on 22 January 2013 and then continued to be elaborated in the nearly 4,000-page Memorial and 3,000 page Supplemental documents sent to the Court of Arbitration.
Basic contents of the Award of the Court of Arbitration
In face of the submissions by the Philippines, China refused to participate in the arbitration and rejected the jurisdiction of the trial. Because of China’s objection, the trial decided to separate hearings and conclusions on the power of the tribunal in the first ruling (8).
The PCA granted the first award on Jurisdiction and Admissibility on 29 October 2015. In this award, the Arbitral Tribunal asserted: 1- There exists a dispute between the Philippines and China concerning land sovereignty, but the claims submitted by the Philippine in these proceedings are not related to sovereignty. The Tribunal hearings of the Philippine submissions are not related to sovereignty and its decisions on the Philippines’ claims do not support any sovereignty claim of any party to the sovereignty disputes in the East Sea (9); 2- The Declaration on the Code of Conduct of Parties in the East Sea is a political agreement, not legally binding, neither define a binding mechanism on settling disputes, nor exclude other settling measures, and thus cannot exclude the Arbitral Tribunal’s jurisdiction. The tribunal also considered bilateral agreements and multi-lateral treaties which China and the Philippines are parties to, such as the Treaty of Amity and Cooperation (TAC) in Southeast Asia, the Convention on Bio-diversity and a number of joint declarations by the Philippines and China on settling disputes through negotiations and decided that these documents do not constitute binding agreements that can prevent the Philippines’s submissions (10); 3- The nature of the claims by the Philippines is to determine the entitlements to maritime zones of a nation. This is a related issue, but completely different to marine delimitation (11). Therefore, the Tribunal concluded not to explicitly consider the Philippine petition as marine boundery delimitation, and thus cannot be excluded under the 2006 Declaration by China (12).
On the basis of those arguments and the award on jurisdiction and admissibility for the case, the Tribunal decided it has jurisdiction to 7 Philippines’ Submissions on the classification of 9 features in Truong Sa Archipelago, on China’s violation of obligations to protect the marine environment as well as its violation of regulations on marine safety and the Filipinos’ right to traditional fishing at Scarborough Shoal. The remaining 7 submissions on the claim to the “nine-dash line” and China’s acts of violation in the EEZ and continental shelf of the Philippines will be considered and concluded together with the second ruling on contents. The Tribunal asked the Philippines to continue elaborating its final request that the judges order that China to desist from further acts of violations in the future (13).
After the award on jurisdiction and admissibility for the case, on 12 July 2016, the Permanent Court of Arbitration granted the final arbitration award by the tribunal. In this ruling, with regard to the first issue on the “nine-dash line,” the Tribunal asserted that China’s navigation and fishing in history in the maritime areas of the East Sea show the freedom rights to the sea, not the implementatopm of “historic rights”; and that there is no evidence showing that in history China has taken exclusive control of the maritime areas in the East Sea or prevented countries from exploiting their resources. China’s claim of “historic rights” to resources is contrary to the Convention. If China did have “historic rights” to resources in the maritime areas of the East Sea, such rights were eliminated after the Convention came into effect because such rights are not relevant to the systems of maritime zones under the Convention. So, the Tribunal concluded that there is no legal basis for China’s claim of “historic rights” to resources of the maritime areas within the “nine-dash line,” and that China had only rights as stipulated by UNCLOS (14).
Regarding the second issue on the status of features at Truong Sa Archipelago and Scarborough Shoal, the Tribunal conducted technical assessment on initial natural conditions (before constructions and installations) as a basis for classifying the features. Whereby, the Tribunal determined that Scarborough Shoal, Gac Ma (Johnson Reef), Chau Vien (Cuateron Reef) and Chu Thap (Fiery Cross Reef) are high-tide features; while Subi Reef, Hughes Reef, Mischief Reef and Second Thomas Shoal are low-tide elevations in natural conditions. The Tribunal also explained Article 121 (3) based on the analysis of terminology of the clause, synthesis of national practice, reference to the context of negotiations, and the drafting and goals of UNCLOS to find out most accurate arguments about determining the maritime areas for high-tide features at Truong Sa Archipelago. The presence of public officials at many features is not an evidence showing that they can sustain human habitation in natural conditions. By assessing historical records, the Arbitral Tribunal found that in history, Truong Sa islands were used by small groups of fishermen from China and other countries, including some guano exploiting and fishing companies from Japan in 1920-1930; the temporary use of features by fishermen does not lead to stable habitation of some communities. Therefore, the Tribunal concluded that all of the high-tide features at Truong Sa (including Ba Binh controlled by Taiwan) are legally “rocks” and do not generate entitlements to exclusive economic zone or continental shelf (15). At the same time, the Tribunal rejected China’s arguments and asserted that Truong Sa cannot be claimed as a unified archipelago; meaning cannot draw its baselines and claim maritime areas from the baselines to Truong Sa Islands (16).
On the third issue, the Tribunal analyzed China’s breaches including: 1- Breach in respect to the Philippines’ sovereign and jurisdiction rights; 2- Breach in respect to the rights to traditional fishing at Scarborough; 3- Breach in respect to the general obligation to protect the environment; 4- Violating the general obligation to maintain maritime safety; and 5- Aggravation or extension of the dispute. Regarding the breach in respect to the Philippines’ sovereign and jurisdiction rights, the tribunal combined conclusions on the first issue on the “nine-dash line” and the second issue on the legal status of features at Truong Sa to assert that Vanh Khan, Co May and Co Rong are low-tide elevations, forming part of the exclusive economic zone and continental shelf of the Philippines, not overlapping any maritime areas that China may have entitlements as stipulated by UNCLOS. Thus, the tribunal concluded that China breached the Convention with respect to the sovereign and jurisdiction rights of the Philippines in its EEZ and continental shelf when conducting interference in the Phippinens’s oil and gas exploration in Co Rong (Reed Bank); preventing Filipino fishing boats from fishing in the Philippines’ EEZ, failing to exercise due diligence to prevent fishing by Chinese flagged vessels in the Philippine EEZ at Vanh Khan Reef and Co May Shoal, constructing installations and artificial islands at Vanh Khan without the authorization of the Philippines (17).
Regarding the right to traditional fishing at Scarborough Shoal, the tribunal concluded that Filipino as well as Chinese and fishermen from other countries have engaged in traditional fishing at Scarborough Shoal for a long time and they have the right to do so in this area. Because Scarborough is a high-tide feature that has territorial rights, there are rights to traditional fishing within the territorial waters in under the Convention. Therefore, the Arbitral Tribunal decided that China unlawfully prevented Filipino fishermen from engaging in traditional fishing at Scarborough Shoal from May 2012 onwards. However, the tribunal will also decide similar conclusions regarding the right to traditional fishing of Chinese fishermen if Philippines prevents them from fishing at Scarborough Shoal (18).
Regarding protectiong and preservation of the marine environment, the Arbitral Tribunal concluded that China’s large-scale construction of installations and and island-building activities at 7 features in Truong Sa Archipelago seriously endangered the coral reef environment, thus, China has breached Articles 192, 194 of UNCLOS on protection of environment. The Arbitral Tribunal also concluded that China was aware of but failed to fulfill its obligation stipulated by UNCLOS to prevent Chinese fishing vessels from engaging in harmful harvesting activities of endangered species such as sea turtle, coral and giant clams on a large scale in the East Sea and taking measures seriously harmful to the environment of the coral reefs (19).
Regarding maintaining marine safety, the Arbitral Tribunal found China has, by virtue of the conduct of Chinese law enforcement vessels to approach the Philippine’s vessels as high speed and seal off these ships at a close distance, create serious risk of collision and danger to Philippine vessels and personnel, violated the 1972 International Regulations for Preventing Collisions at Sea (COLREGS) and, as a consequence, to be in breach of Article 94 of the Convention (20).
Finally, the Tribunal affirmed that parties to the proceedings are obliged to refrain from aggravation or extension of the dispute (s). It concluded that China has in the course of these proceedings aggravated and extended the disputes between the Parties by building a large artificial island at Vanh Khan, a low-tide elevation lying in the Philippine EEZ, causing long-term destruction unrecoverable towards the coral reef ecological system and long-term destruction of evidence on natural conditions of these features (21).
Impacts of the trial on East Sea disputes and Vietnam
The verdict by the Arbitral Tribunal is appreciated as a turning point, affecting the process of resolution of disputes in the East Sea. Filipino former Judge Antonio Carpio stated that the ruling confirmed the belief of mankind on the principle of peaceful settlement of disputes between nations, not to use or threat to use force and is an important step of development helping clarify claims by parties in the East Sea (22). In fact, overall, the verdict by the Arbitral Tribunal in this case may have large political and legal impacts to help elaborate claims by parties in the East Sea, facilitating parties to seek long-term solutions to disputes in the East Sea.
First, from legal perspective, the verdict helps narrow the scope of sea dispute in the East Sea. In the past, with the claim to the “nine-dash line” and the way of explaining that Truong Sa is a unified archipelargo having EEZ and continental shelf according to national island regulations, over 85% of the East Sea area is considered having disputes. This leads to a number of escalated and tense actions and absurd realization of the “nine-dash line” by China in areas lying deep in the EEZ and continental shelf of Vietnam, the Philippines and Malaysia. Now, with clear conclusions by the Arbitral Tribunal, China has no legal basis to claim “historic rights” in the maritime areas encompassed by the relevant part of the “nine-dash line” and the features at Truong Sa Islands only have entitlements to 12 nautical miles, thus the maritime areas which can be considered having disputes are 12 nautical mile areas surrounding each of the Truong Sa Islands.
Second, thanks to reduced scope of maritime areas considered to have disputes, the tribunal concluded that many actions taken by China are unlawful, infringing upon the sovereign and jurisdiction rights of the Philippines, constituting breaches to protect the environment and marine safety. This is an important legal basis to guide actions by disputing parties in the East Sea in the future toward restraint, not aggravating disputes and resolution of disputes by peaceful means. This is also efforts made by the Association of Southeast Asian Nations (ASEAN) and China to implement the Declaration of Code of Conduct (DOC) of Parties in the East Sea in the past time without achieving specific effect (23). So, it can be said that the award by the Arbitral Tribunal provides more legal ground for China and ASEAN to continue implementing their commitments on code of conduct in the East Sea, thus promoting the process of negotiations and signing of the Code of Conduct (COC) by Parties in the East Sea.
Third, the award by the Arbitral Tribunal helps urge progressive public opinion in the world to support international order based on international law. In the past, whenever an incident occurred in the East Sea, every party had its own legal arguments to protect their actions. It was not easy for the international community to decide who is right and who is wrong. But since the decisions of the international Arbitral Tribunal, it is clearer to identify right and wrong actions. Therefore, the progressive public opinion has a legal basis to confirm its stand by international law and call on conflicting parties to resolve disputes in accordance with provisions of international law (24). This is an important prerequisite for promoting a peaceful process of settling disputes, limiting the use of force and using force and power to threaten and force small nations in the East Sea disputes.
The award not only has impacts on the East Sea disputes in general but also provides impacts and lessons for Vietnam.
First of all, because the claimed “nine-dash line” encompasses the East Sea, covering some 60% of the area of the exclusive economic zone and continental shelf of Vietnam, the Arbitral Tribunal’s rejection of the legal basis for China’s possible use of this line to claim maritime areas will help Vietnam to have a solid legal ground to protect the exclusive economic zone and continental shelf generated from the coast of Vietnam.
Moreover, at present, under the 2012 Law of the Sea, Vietnam is selecting a safe solution to determine the sea areas surrounding its islands in accordance with Article 121 of UNCLOS. With the conclusion on status of features at Truong Sa Islands by the Arbitral tribunal, Vietnam can follow the Tribunal’s conclusions to define more concretely the maritime areas for the islands that Vietnam has confirmed its sovereignty over at Truong Sa. This will be a move helping Vietnam make clear its sea claims in accordance with international law and enhance its image and prestige as a nation respecting international laws.
In addition, many breaches by China against the Philippines are similar to those against Vietnam. They include prevention, harassment and interference on oil and gas exploitation activities in Vietnam’s continental shelf; prevention of Vietnamese fishermen from fishing in the exclusive economic zone and traditional fishing grounds of Vietnam; construction of illegal installations in Vietnam’s continental shelf; clashes and collisions with Vietnamese fishing boats and coastal guard boats and so on. These acts have been concluded by the Arbitral Tribunal as unlawful. Thus, based on the ruling, Vietnam has more solid legal grounds to prevent China’s acts of violation in the future.
It can be said that, the award by the Arbitral Tribunal constituted under Annex VII to UNCLOS is a success, showing that international law and common values built and respected by nations in the past many decades in international relations prevail; and that nations can use international law as a fair tool in their efforts to peacefully settle international disputes. The decisions by the Tribunal have many positive points not only for the Philippines but also for other nations having disputes in the East Sea, opening up an opportunity for disputing parties to reach long-term and sustainable solutions in line international law for management and cooperation in the East Sea.
(1) Article 36 of the Regulation of International Court of Justice confirms the Court only has jurisdiction over the disputes agreed by parties to submit to the court on the basis such as joint agreement, unilateral declaration of approval, or provisions of international treaties to which the disputing nations are parties.
(2) According to Articles 2, 33, 56 and 76 of UNCLOS
(3) Declaration by the Head of the Department of International Law and Treaties, Ministry of Foreign Affairs of China, dated 12 May 2016
(4) Submissions No. 1 and 2 from the Philippines.
(5) The Note sent by China to the United Nations relating the submissions on the expanded continental shelf of Vietnam and Malaysia, No. CML/12/2009 (13 April 2009) and CML/8/2011 (14 April 2011).
(6) Submissions No. 3 – 7 from the Philippines.
(7) These documents are published in full at https://www.pcacases.com/web/view/7
(8) Press release No. 4 of the Arbitral Tribunal, published at https://www.pcacases.com/web/sendAttach/1298
(9) Decisions in Paragraph 153, Award by the arbitral tribunal on Jurisdiction and Admissibility for the case on 29 October 2015; full text is published at https://www.pcacases.com/web/sendAttach/1506 (hereinafter referred to as Award on jurisdiction)
(10) Conclusions in paragraphs 302, 310, and 321, Award on Jurisdiction
(11) Maritime boundery delimitation arises only after determining the entitlements over the areas which are overlap
(12) Conclusions in Paragraph 153, Award on Jurisdiction
(13) Paragraph 421, Award on Jurisdiction
(14) Paragraph 278, Award on the contents of the Philippines-China Arbitration , http://www.pcacases.com/pcadocs/PH-CN%20-%2020160712%20-%20Award.pdf (hereinafter referred to as Award on contents)
(15) Conclusions in Paragraph 646, Award on Contents
(16) Conclusions in Paragraphs 575 and 576, Award on Contents
(17) Conclusions in Paragraphs 716, 757, 1043, Award on Contents
(18) Conclusions in Paragraph 814, Award on Contents
(19) Conclusions in Paragraphs 992 and 993, Award on Contents
(20) Conclusions in Paragraph 1109, Ruling on Contents
(21) Conclusions in Paragraph 1181, Award on Contents
(22) Interview granted by former Judge Antonio Carpio to abscbn news, full text is published at http://news.abs-cbn.com/focus/07/14/16/transcript-justice-antonio-carpio-on-south-china-sea-conflict
(23) Provisions in Article 4 and 5 of DOC. ASEAN and China have not yet reached an agreement on the explanation and stipulation of Article 4 and 5 of the DOC through the listing of activities to be done and not to be done to promote the management and resolution of disputes in the East Sea.
(24) So far, the United States, Japan, Australia and Canada have released statements confirming that the verdicts are legally binding to parties to the arbitration and asked them to abide by the ruling. The European Union (EU), Singapore, Indonesia, Malaysia and other countries have issued statements calling on parties to resolve disputes in the East Sea in accordance with international law.
* Institute of East Sea Studies, Diplomatic Academy of Vietnam
(The views in the article are those from personal research and do not reflect the official views of the Diplomatic Academy)