Prospects for Provisional Arrangements
in the West Philippine Sea Post-
Arbitration
Mary Fides A. Quintos
The United Nations-Nippon Foundation Fellowship Programme 2015-2016
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Legal View on Resources, Security, and Environment in South China Sea, Exams of Law
Possible options for provisional arrangements in the West Philippine Sea regarding living and non-living resources, maritime security, marine environment protection, seismic survey, and marine scientific research. The document also explores the legal status of disputed features in the South China Sea, including the Scarborough Shoal, Mischief Reef, and others, and the role of international law in resolving maritime disputes.
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Download Legal View on Resources, Security, and Environment in South China Sea and more Exams Law in PDF only on Docsity!
Prospects for Provisional Arrangements
in the West Philippine Sea Post-
Arbitration
Mary Fides A. Quintos
The United Nations-Nippon Foundation Fellowship Programme 2015-
DISCLAIMER
The views expressed herein are of the author’s alone and do not reflect the official position of the Foreign Service Institute, the Department of Foreign Affairs, the Government of the Philippines, the United Nations Division of Ocean Affairs and Law of the Sea, or the Australian National Centre for Ocean Resources and Security of the University of Wollongong.
Acknowledgments
My sincerest gratitude to all the officers and staff of the United Nations Division for Ocean Affairs and the Law of the Sea, especially to Ms Valentina Germani and Ms Simone Dempsey for their unrelenting support and motivation all throughout the fellowship programme. Many thanks also to The Nippon Foundation of Japan for its generosity and for providing this opportunity.
I am greatly indebted to my supervisor, Professor Stuart Kaye, Director of Australian National Centre for Ocean Resources and Security, for his invaluable help and guidance in the drafting of this paper. Many thanks also to Ms Myree Mitchell for the assistance she has provided during the academic part of my fellowship.
I also like to thank the Foreign Service Institute for allowing me to go after my dreams. Special thanks to my family, friends, and colleagues who have always been so encouraging.
I am also very grateful for finding love and friendship in New York and Australia.
Table of Contents
Introduction
The South China Sea has been the object of overlapping claims by several parties including the Philippines and China. The Philippines’ exclusive economic zone overlaps with China’s historical nine-dash line. Some insular features in the South China Sea that are being claimed by both parties also lie within or just outside the Philippine’s exclusive economic zone.
The United Nations Convention on the Law of the Sea (LOSC) stipulates various courses of action that states can utilize to manage or settle disputes. In areas of overlapping maritime claims, Articles 74 and 83 provide that states can choose to agree on the delimitation of their maritime zones, enter into provisional arrangements of a practical nature pending agreements, or if no agreement can be reached, they can resort to dispute settlement mechanisms provided for in Part XV of the LOSC. Moreover, states can utilize Part XV to settle any dispute between them concerning the interpretation or application of the Convention^1.
The Philippines submitted in January 2013 to an Arbitral Tribunal created under Annex VII of the LOSC its dispute with China over the South China Sea. In the arbitration case, the Philippines seeks to clarify the validity of China’s historical “nine-dash line” claim. The Philippines also argues that specific disputed features in the South China Sea are at most classified as rocks, which can only generate a 12 nm territorial sea. The Philippines intends to decrease the area of dispute, without requesting for any determination regarding questions of land sovereignty over the features in the South China Sea.^2
On 29 October 2015, the Tribunal ruled that it has jurisdiction to consider the Philippines’ submissions regarding the status of nine disputed features in the South China Sea that includes the Scarborough Shoal, Mischief Reef, Second Thomas Shoal,
(^1) 1982 United Nations Convention on the Law of the Sea, Articles 74 and 83 (^2) Republic of the Philippines, Department of Foreign Affairs Manila, “Notification and Statement of Claim”, 22 January 2013, Available from http://www.dfa.gov.ph/index.php/newsroom/unclos
Subi Reef, Gaven Reef, McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef. With regard to the validity of China’s “nine-dash line” claim, the Tribunal reserved consideration on jurisdiction on the merits phase. The other Submissions of the Philippines regarding the lawfulness of activities with respect to living and non-living resources, construction of artificial islands, installations, and structures, protection of the marine environment, and right of navigation will also be taken by the Tribunal in conjunction with the merits of the case.^3
While the present arbitration case has been considered by many analysts as a major step towards the eventual resolution of the disputes, it is also equally important to prepare for post-arbitration scenarios. If the Tribunal rules that the features under question would have a territorial sea or exclusive economic zone, there could still be the existence of overlapping maritime zones due to the geographical proximity of these insular features with each other and to the Philippine main archipelago. If the Tribunal also rules that the validity of China’s historic rights claim in the South China Sea by virtue of the “nine-dash line” are covered by the exclusion from jurisdiction of “historic bays or titles” under Article 298 of the LOSC, then the status quo ante will be upheld and China’s “nine-dash line” will continue to overlap to a large extent to the Philippines’ exclusive economic zone.
There are many complicating factors that may affect the delimitation of overlapping maritime zones which include the assertion of historic rights, the presence of islands, particularly when it is unclear whether they should be considered as habitable territory or treated merely as rocks on which a claim to a coastal state jurisdiction cannot be based, and the existence of territorial disputes over insular features. The International Court of Justice defined territorial disputes as “essentially one of drawing a boundary line between areas which already appertain to one or other of the States affected”^4 , hence, while they are not intrinsically part of the process of delimitation, they
(^3) In the Matter of Arbitration before an Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea (The Republic of the Philippines v People’s Republic of China) (Award on Jurisdiction and Admissibility) 4 (Permanent Court of Arbitration, 29 October 2015) Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law, (Oxford, Oxford University Press, 2008)
1.2 Overview of the Paper
This paper is composed of four chapters. Chapter 1 is a discussion of the law that applies in disputed areas, including its history and development, and the interpretation of provisions. Chapter 2 is a presentation of relevant cases of both unilateral activities and provisional arrangements in application of the law. Chapter 3 is a discussion of previous cooperation arrangements in the South China Sea and lessons learned. Taking all these things into consideration, the last chapter is an analysis on the possible unilateral and joint courses of action that can be implemented post-arbitration.
1.3 Background and Context
The South China Sea is a semi-enclosed sea bordered by China and Taiwan at the north, the Philippines at the east, Brunei, Malaysia, Singapore, and Indonesia at the south, and Vietnam at the west. The northernmost portion of the South China Sea is from the Strait of Taiwan, extending down until the 1° North parallel of latitude as its southernmost limit, which makes its total surface area at approximately 3 million square kilometers or around 874,660 square nautical miles.^6
Overlapping maritime zones
The LOSC provides various maritime zones that can be generated from a land territory. Articles 57 and 76 of the LOSC indicate that a state can have a maritime area of up to 200 nm from its baselines which is called the exclusive economic zone, and the seabed and subsoil underneath the exclusive economic zone is called the legal continental shelf. Article 86 states that the water beyond the exclusive economic zone is called the high seas. When the surrounding littoral sates of the South China Sea started drawing their 200 nm exclusive economic zones, it resulted in many convergences and overlaps. In addition, because of the broad dimension of the South China Sea and its semi-
(^6) Hasjim Djalal, “South China Sea Island Disputes” in Security Flashpoints: Oil, Islands, Sea Access and Military Confrontation , MH Nordquist and JN Moore, eds. (The Hague, Martinus Nijhoff Publishers, 1998)
enclosed character, a 400 nm pocket of high seas that formed like a “doughnut hole” between opposing shores exists in the middle of the South China Sea.^7
Several states, however, have managed to delimit their overlapping maritime boundaries. In an Exchange of Letters in 2009, Brunei and Malaysia agreed on the modalities for demarcating their common border and established a joint petroleum area. Indonesia also delimited its continental shelf boundary between Malaysia in 1969 and Vietnam in 2003. Vietnam’s agreement of a boundary with China over the Gulf of Tonkin came into force in 2004.^8
Notwithstanding the successful agreements on some overlapping maritime zones in the South China Sea, many areas still need to be delimited. The Philippines is currently undergoing negotiations of its boundary with Taiwan, while there have been no discussion yet on its southern boundary with Malaysia because of the sovereignty dispute over Sabah. The overlapping exclusive economic zones of Indonesia and Malaysia, Vietnam and Indonesia, Vietnam and Malaysia are also yet to be delimited.
Territorial disputes
Aside from the maritime disputes, there are also at least three groups of insular features in the South China Sea that are subject to overlapping claims, which include the Paracel Islands, Scarborough Shoal, and Spratly Islands. Located at the northwest of the South China Sea is Paracel Islands, comprising around 130 islands and is currently under the control of China but is also being claimed by Vietnam and Taiwan. Opposite the Paracel Islands on the northeast side is Scarborough Shoal, described as a “step-to on all sides and consists of a narrow belt of coral, which is predominantly submerged at high tide
(^7) Clive Schofield, “Increasingly contested waters: conflicting maritime claims in the South China Sea” in The South China Sea and Australia’s Regional Security Environment, L. Buszynski and C. Roberts, eds. (Canberra, National Security, 2013) 8 David Colson and Robert Smith, eds. International Maritime Boundaries Vol. V, (The Netherlands, American Society of International Law, 2005)
territory. Thus, the existence of insular features in the South China Sea means that they have the potential to generate maritime zones.^14
Article 121 of the LOSC provided guidance on the legal status of insular features. An island is a naturally formed area of land, surrounded by water, and is above water at high tide. It can have a territorial sea, contiguous zone, exclusive economic zone, and continental shelf if it can satisfy the criteria of sustaining human habitation or economic life of its own. If a feature does not meet this criteria, it will be considered as a rock which can only generate a maximum of 12 nm territorial sea.^15
Apart from the sovereignty dispute over the land features in the South China Sea, and in application of Article 121, the potential maritime entitlements of these features that lie geographically close to each other and even to the mainland coasts of bordering littoral states can add to the overlapping maritime disputes in the area.
Historic Rights Claims
Another aspect of the South China Sea disputes is the dashed line. China asserts indisputable sovereignty over the Pratas Islands, Paracel Islands, Spratly Islands, Macclesfield Bank, and Scarborough Shoal and their adjacent waters, including the seabed and subsoil thereof. The entirety of this claim is approximately 2,000,000 square kilometers of maritime space in the entire South China Sea, which is depicted by a U- shaped dashed line.^16 China has not clarified the exact geographic coordinates of its claim. Although it submitted to the United Nations in 2009 a map containing nine-dash lines, there have been succeeding published Chinese maps depicting ten-dash lines, with the addition of another dash to the east of Taiwan. The other claimants in the South China Sea disputes such as the Philippines and Vietnam have lodged diplomatic
(^14) Barbara Kwiatkowska, Decisions of the World Court Relevant to the UN Convention on the Law of the Sea: A Reference Guide 15 (The Hague, The Netherlands, Kluwer Law International, 2002) 16 1982 United Nations Convention on the Law of the Sea, Article 121 United States of America, Office of Ocean and Polar Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, United States Department of State, China: Maritime Claims in the South China Sea (2014)
protests against China’s submission to the UN of the nine-dashed line. They argued that the LOSC is a product of compromise to ensure equal rights and obligations of states and for the prevention of excessive maritime claims. Hence, they oppose any claims of historic rights in areas beyond the limits of maritime zones established under the Convention.
China has based its claim over the South China Sea on history. It contends that as early as 2,000 years ago, “China was the first country to discover, name, explore and exploit the resources of the South China Sea Islands and the first to continuously exercise sovereign powers over them”.^17 Furthermore, according to China, its official publication of its dashed line map in 1948, and its succeeding laws on territorial sea and contiguous zone affirms its territorial sovereignty and maritime rights and interests in the South China Sea.^18 Because of its shared history with China, Taiwan is also claiming the South China Sea based on the same historical data.
The LOSC contains provisions pertaining to historic bays or historic titles. Article 10 (6) stipulates that the provisions on measuring the indentation of bays do not apply to so- called ‘historic bays’. Article 15 excludes the application of the median line to special circumstances such as “by reason of historic title” for the delimitation of the territorial sea between two states. Article 298 (1) allows states to exclude disputes “involving historic bays or title” from compulsory dispute settlement procedure.
While the LOSC did not provide any definition of historic bay or historic title, historic rights claims generally has two types: one that can be claimed in historic waters, and the other that covers special rights. Historic rights can be claimed in historic waters that can be regarded as internal waters subject to the full sovereignty of the state. These historic waters usually apply to bay and gulfs, but they can also apply to straits, to the
(^17) Ministry of Foreign Affairs of the People’s Republic of China, “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines”, 7 December 2014, Available from 18 http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml Ibid.
economies in Asia is the need for more energy and other resources, which further emphasizes the importance of the South China Sea to the region.
According to the LOSC, a coastal state can exercise sovereignty over the territorial sea, and sovereign rights for the purpose of exploration and exploitation of resources in the exclusive economic zone and continental shelf. Article 56 of the Convention also provides that a coastal state has jurisdiction with regard to the establishment and use of artificial islands, installations, and structures; marine scientific research; and the protection and preservation of the marine environment. Because of the complexity of the disputes in the South China Sea, however, each claimant party believes to have the right to access resources or exercise jurisdiction over the area, and any activity by all the other claimants is perceived to be a violation of that right.
There have been a period of successive tensions among parties in the South China Sea disputes because of activities related to Article 56. The Philippines and China was involved in an incident at Reed Bank in 2011 when two Chinese surveillance vessels reportedly ordered a Philippine-registered vessel conducting seismic surveys to leave the area. Reed Bank is 80 nm from the Philippine province of Palawan and is well- within the Philippines’ exclusive economic zone. China, on the other hand, claims indisputable sovereignty over the area because of its nine-dashed line. Vietnam and China also got involved in a similar incident in 2011 at the western side of the South China Sea, which even resulted in the entanglement and cutting of seismic cables. In 2014, China placed a deep sea drilling rig in disputed waters near Vietnam. Responding to Vietnam’s objection that the rig was placed in its continental shelf, China responded that it was placed within the waters of China’s Paracel Islands, with reference to the potential exclusive economic zone that Paracels may generate under Article 121 of the LOSC. The tension among the two parties resulted in ramming and sinking of vessels.^24
(^24) Ernest Bower and Gregory Poling, “China-Vietnam Tensions High over Drilling Rig in Disputed Waters”, 7 May
- Available from http://csis.org/publication/critical-questions-china-vietnam-tensions-high-over-drilling-rig- disputed-waters
Another source of tension among disputing parties is fishery resources. Littoral states in the South China Sea have been arresting and detaining fishermen from other claimant countries conducting activities near their coasts. A major incident happened in 2012 when the Philippines dispatched a vessel at Scarborough Shoal to detain Chinese fishing boats found with large amounts of endangered marine species. Two Chinese vessels arrived in the area placing themselves between the Philippine warship and the fishing vessels, which caused a standoff that lasted for several months. On one hand, the Philippines argued that it has the sovereign rights to explore and exploit the resources in the area, as Scarborough Shoal is located 124 nm off the nearest coast of the Philippine province of Zambales, and that the maritime space outside the 12 nm territorial sea of the rocks of Bajo de Masinloc is well within the 200 nm exclusive economic zone and continental shelf of the Philippines.^25 China, on the other hand, maintained that it has sovereignty over the Scarborough Shoal based on historical facts and its surrounding waters are “traditional fisheries for Chinese fishermen”.^26 Since the standoff incident, China has maintained permanent presence at Scarborough Shoal and has prevented the Philippines from fishing in the area or in its vicinity.
Imposition of unilateral laws and regulations on certain activities in the South China Sea has also been prevalent. Disputing parties have imposed unilateral fishing bans in certan areas of the South China Sea. In 2012, the Coast and Border Regulation of Hainan authorized its patrol police to board, seize, and expel foreign ships illegally entering the South China Sea. The activities that were deemed illegal include the halting or dropping of anchor without China’s consent. In 2014, China enacted a new law demanding foreign vessels to seek permission to China before fishing in the South China Sea. According to the law, China has the right to confiscate the equipment and fish catch of violators, along with the imposition of a maximum of 500,000 yuan or
(^25) Philippine Department of Foreign Affairs, “Philippine Position on Bajo de Masinloc (Scarborough Shoal) and the waters within its vicinity”, 18 April 2012. Available from http://www.gov.ph/2012/04/18/philippine-position-on- bajo-de-masinloc-and-the-waters-within-its-vicinity/ 26 Embassy of the Republic of China in the Republic of the Philippines, “Some Basic Facts on China’s sovereignty over Huangyan Island”, 13 April 2012. Available from http://ph.chineseembassy.org/eng/xwfb/t922594.htm
itself and China in the South China Sea, and its perceived failure of bilateral and multilateral diplomatic efforts have prompted it to initiate arbitration. In its Notification and Statement of Claim, the Philippines asserts the following: (1) that China’s rights in maritime areas in the South China Sea are those established by UNCLOS; (2) that China’s “nine dash line” claim is inconsistent with the LOSC and therefore invalid; (3) that Mischief Reef, McKennan Reef, Gaven Reef, and Subi Reef are submerged features and cannot be appropriated unless they are part of a state’s continental shelf or the international seabed; (4) that Mischief Reef and McKennan Reef are part of the Philippines’ continental shelf; (5) that Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are rocks and can generate at most 12 nm territorial sea, and that China has unlawfully claimed maritime entitlements beyond 12 nm from these features; (6) that China has unlawfully prevented Philippine vessels from exploiting the living resources in the waters adjacent to Scarborough Shoal and Johnson Reef; (7) that the Philippines’ main archipelago is entitled to all maritime zones under the LOSC; (8) that China’s claimed rights to the Philippines’ exclusive economic zone and continental shelf are unlawful; and (9) that China has unlawfully prevented, and interfered with the exercise of the Philippines of its rights in its exclusive economic zone and continental shelf.^32
The Philippines added that its claims are covered by the provisions of the LOSC and that none of these claims require the Tribunal to make a determination on territorial sovereignty nor maritime delimitation, which China exempted from compulsory dispute settlement procedures. The Philippines reiterated that its case is about the interpretation and application of the LOSC, which the Tribunal has jurisdiction.^33
China rejected participation in the arbitral proceedings initiated by the Philippines and continuously reiterated that it will never “accept any imposed solution or unilaterally
(^32) Department of Foreign Affairs, “Notification and Statement of Claim”, 22 January 2013. Available from file:///C:/Users/Fides/Downloads/Notification%20and%20Statement%20of%20Claim%20on%20West%20Philippin e%20Sea.pdf 33 Ibid.
resorting to a third-party settlement.”^34 China ignored the deadline set for it by the Tribunal to file a Counter-Memorial and to provide comments in response to the supplemental written submission of the Philippines. Without formally participating in the case, however, China published a position paper on 7 December 2014 arguing against the jurisdiction of the Tribunal over the South China Sea arbitration. China argued that the determination of territorial sovereignty over the maritime features in the South China Sea is a prerequisite for the application of maritime entitlements and subsequent rights of the States Parties. Hence, maritime entitlements cannot be taken in isolation from the question of sovereignty, which the Tribunal has no jurisdiction. China also added that even assuming that the case is concerned with the interpretation or application of the LOSC, an integral part of it would still involve maritime delimitation, which China exempted from compulsory arbitration.^35
On 29 October 2015, the Tribunal ruled that it has jurisdiction to consider the Philippines’ submissions regarding the status of nine disputed features in the South China Sea that includes the Scarborough Shoal, Mischief Reef, Second Thomas Shoal, Subi Reef, Gaven Reef, McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef. With regard to the validity of China’s “nine-dash line” claim, the Tribunal reserved consideration on jurisdiction on the merits phase. The other Submissions of the Philippines regarding the lawfulness of activities with respect to living and non-living resources, construction of artificial islands, installations, and structures, protection of the marine environment, and right of navigation will also be taken by the Tribunal in conjunction with the merits of the case.^36
While the status of the disputed features can be resolved by the Tribunal, the settlement of the issue of sovereignty and possible resulting overlapping maritime entitlements are (^34) Hua Chunying, Chinese Foreign Ministry Spokesperson, “Remarks on the Conclusion of the Hearing on Issues Relating to Jurisdiction and Admissibility by the South China Sea Arbitral Tribunal established at the Request of the Philippines”, 14 July 2015. Available from www.fmprc.gov.cn 35 Ministry of Foreign Affairs of the People’s Republic of China, “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines”, 7 December 2014, Available from 36 http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml In the Matter of Arbitration before an Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea (The Republic of the Philippines v People’s Republic of China) (Award on Jurisdiction and Admissibility) (Permanent Court of Arbitration, 29 October 2015)