Wednesday, July 13, 2016
[Note: This post has endnotes.]
The long-awaited decision of the UNCLOS arbitration tribunal (the “Tribunal”) in the South China Sea case between China and the Philippines case (the “Decision”) was released today. (Click here for links to a detailed press release and the text of the Decision itself.) I am not a specialist in the law of the sea or even international law generally, but since everyone else is commenting on the decision I think I’ll add my own voice as well. What follows are some unsystematic thoughts on particular aspects of the Decision that I think are more difficult to understand or haven’t been commented on much. (For an excellent quick overview of the whole thing (which this post definitely is not), check out this great Lawfare blog post by Robert Williams. For a more detailed look and assessment, check out Jacques deLisle's excellent piece here. Julian Ku has also been following this for some time and has written several pieces on it, and will no doubt continue to do so.)
- The Decision does not decide any territorial claims. The Tribunal did not have jurisdiction to do so and never so pretended. It specifically disclaimed its jurisdiction and intention to decide any such claims.
- The Tribunal did decide what types of rights to surrounding waters were generated by particular geographical features such as rocks and islands. It decided that the features in questions were rocks, not islands, and therefore not capable of generating 200-mile exclusive economic zones (“EEZs”) around them. (Decision, pp. 204 et seq.) This matter falls squarely within the purview of the Law of the Sea Convention (the “Convention”). As noted above, however, it did not decide who had the rights to those features (appropriately, because that is a matter that does not fall within the purview of the Convention), whether or not they were capable of generating rights.
- The Decision does not say that China’s Nine-Dash Line (the “NDL”) is “illegal” or anything like that. Nor could it: China has never clarified what exactly it is claiming with the NDL. The Tribunal said that if it represents a claim of type X (of which more later), then that claim is unfounded. It is the claim that is unsound, not the particular method China uses to signal its claim.
- The main significance of the Decision is not what it says about the NDL and China’s claim of “historic rights”. It is in what it says about what kinds of rights are generated by various geographical features. As the Decision notes, much of the area within the NDL “would also fall within a claim to an exclusive economic zone or continental shelf drawn from the various features of the Spratly Islands.” (Decision, Para. 207) Since the Tribunal did not decide the question of sovereignty over those features, the key feature of its decision was whether China, if it had sovereignty, was entitled to a 200-mile EEZ as a result. If it had decided in China’s favor on that question, its decision against China on the NDL issue would have been of little practical significance.
It’s the third point that I want to address here, because there are lots of interesting wrinkles in the argument.
A. Did the tribunal have to address the NDL issue?
First, did the Decision have to address the NDL issue at all? I ask this question because some analysts have asserted that the tribunal could (and should) have avoided this sensitive question entirely. This kind of objection really makes sense only if one is saying that the tribunal could have resolved the issues before it without getting into the thicket of the NDL. Anglo-American lawyers are used to making arguments like this, because they see courts and similar tribunals as designed to resolve cases, not to make abstract, grandiose, and quite possibly controversial statements about the law. If you can resolve a case by using low-level, uncontroversial principles, you should do it that way instead of relying on high-level, highly-disputed principles. That means that you invoke the latter only when you really have to, thus minimizing controversies and maximizing the court’s legitimacy. So far, so good: in principle, this is a reasonable objection.
But if one is simply saying that the tribunal could have avoided a controversial issue by simply not addressing it, well, duh. But then it would not have resolved an issue that it was supposed to resolve. It’s like saying that the Supreme Court could have avoided ruling on the constitutionality of segregation by simply declining to hear Brown v. Board of Education. Well, yes, but …
So this criticism is legitimate only if the tribunal could have resolved the issues before it without talking about the NDL and what it stands for. Could it have done so? I don’t see how.
The Philippines specifically requested the tribunal to do the following:
[T]he Philippines seeks a declaration from the Tribunal that China’s rights and entitlements in the South China Sea must be based on the Convention and not on any claim to historic rights. In this respect, the Philippines seeks a declaration that China’s claim to rights within the ‘nine-dash line’ marked on Chinese maps are without lawful effect to the extent that they exceed the entitlements that China would be permitted by the Convention. (Decision, Para. 7)
Now, it is certainly not the case that tribunals are obliged to resolve every issue put to them. If the Philippines had asked the tribunal to resolve an abstract issue of law with no real-world consequences for the parties, the tribunal could, and should, have avoided the question. The standard justification for avoiding such questions is that with nothing at stake, neither the parties nor the tribunal have an incentive to think the issues through sufficiently and consider all the angles and consequences of a ruling one way or the other, and also that the tribunal’s legitimacy is diminished when it purports to pronounce on matters that are beyond its proper jurisdiction: the resolution of an actual dispute between the parties. And that line of thinking makes sense to me.
But in this case, the issue that the tribunal was asked to resolve was a genuine issue between the parties that had real-world consequences. China was claiming certain rights over waters on a theory (that of “historical rights”) that had no basis in the Law of the Sea Convention, it was defining those waters via the NDL, and it was taking specific actions on the basis of those claims.
The Tribunal listed three specific instances where China appears to have asserted rights arising independently of the Convention. First, in June 2012, the China National Offshore Oil Corporation issued a notice of open blocks for petroleum exploration adjacent to the western edge of the NDL. At least one of those blocks included an area situated more than 200 miles from any feature in the South China Sea claimed by China and beyond any extended continental shelf. (Decision, Para. 208) Although the area in question does not apparently overlap with any waters claimed by the Philippines, other areas claimed under the same theory do, and given that the area is, in the view of the Philippines, international waters not subject to any country’s EEZ and therefore open to exploitation by any country including the Philippines, it has a legitimate interest in challenging a claim contrary to that view.
Second, China has objected to the Philippines’ award of petroleum blocks within the NDL. But what was the source of the claimed rights that formed the basis of China’s objection? As the Tribunal noted, “The area of the Philippines’ petroleum blocks could be almost covered by entitlements claimed by China under the Convention, if China were understood to claim an exclusive economic zone from all high-tide features in the Spratly Islands, no matter how small, and from Scarborough Shoal. The fact of China’s objection is thus not necessarily indicative of the source of China’s claimed rights.” (Decision, Para. 208 (emphasis added)) But China itself stated that its claims derived from its “indisputable sovereignty” “since ancient times” “over the Nansha islands and its adjacent waters”, and in a different objection noted that various blocks were located “deep within China’s nine-dash line.” (Decision, Para. 209)
Third, China has declared a partial ban on fishing in areas of the South China Sea that, like the Philippines’ petroleum blocks, could be almost entirely covered by entitlements under the Convention “if China were understood to claim a 200-mile EEZ from the very small rocks of the Scarborough Shoal.” But for the reasons stated above, it seems more likely that China’s claim is based on its theory of “historic rights”, and in any case since the Tribunal decided that the rocks of the Scarborough Shoal did not generate an EEZ, it became necessary to rule on whether China had a claim to the seas in question on the basis of any other theory.
Finally, although the Tribunal did not make this point, it is worth noting that had the Philippines not challenged China’s “historic rights” theory symbolized by the NDL, it could justly have been faulted later on for acquiescence, a key factor in deciding rights under international law. If a state makes claims beyond its recognized rights and other states fail to object for a long enough period, then those claims will ultimately ripen into recognized rights.
In sum, the Philippines presented a genuine and not abstract issue to the Tribunal on which issues of real importance turned. China was claiming certain rights to the sea that did not originate in the Convention, and those claims were inimical to the Philippines. The geographical scope of those claims was defined not by land features (as is the case with EEZs and territorial waters) but by the NDL. It is impossible to see how the Tribunal could have resolved the issue before it without talking about the NDL and the “historic rights” claim it defines.
B. What does the Decision say about the NDL?
Second, what exactly does the Decision say about the NDL? Contrary to some commentary, the Decision does not say that the NDL is “illegal”. And indeed, it could not, since the NDL does not actually do anything. It’s a line on maps drawn by China. The important thing is to understand what underlying claims it symbolizes, and then to analyze those claims. This proved a bit difficult for the Tribunal, since China has been coy about what exactly it is claiming when it publishes maps showing the NDL. The Tribunal tried to figure out what sort of claim was symbolized by the NDL and then ruled on the validity of that claim. This does not quite mean that China can simply change the theory underlying the claims symbolized by the NDL and force the Philippines (and other affected states) to start again from square one, because the Tribunal expressly ruled that rights not provided for under the Convention are trumped by rights provided for in the Convention; that the extinction of such rights was the price states paid to get the benefit of rights under the Convention such as EEZs.
On the basis of various statements made by the Chinese government, the Tribunal concluded that China was making a particular set of claims (call them “X claims”) over particular waters (call them “Y waters”). The content of X claims is as follows: (1) exclusive rights to living and non-living resources, and (2) a commitment to respect freedom of navigation and overflight, indicating that Y waters are not considered territorial or internal waters. The content of Y waters is all waters within the NDL that are not China’s territorial waters or EEZs under the Convention. Even if one acknowledges as valid all of China’s territorial claims in the SCS, and moreover grants a 200-mile EEZ to every rock within the NDL, it still encompasses areas that are outside of any conceivable EEZ, and the Tribunal found that China was asserting X claims over those areas.
The Tribunal then had to decide whether X claims had any validity under the Convention or beyond the Convention. On this issue, its reasoning was straightforward. If China (or any other state) had rights of any kind (historical or otherwise) to waters covered by the Convention prior to joining the Convention, those rights were extinguished as part of the deal states made when they joined. In exchange for the EEZ, they gave up other kinds of rights. Thus, even if China did have something called “historical rights” over certain waters, it gave up those rights when it signed on to the Convention.
Ironically, as the Decision points out, exactly this position was strongly supported by none other than China itself during negotiations over the Convention in the mid-1970s: “In the course of these debates, China actively positioned itself as one of the foremost defenders of the rights of developing States and was resolutely opposed to any suggestion that coastal States could be obliged to share the resources of the exclusive economic zone with other powers that had historically fished in those waters.” (Decision, Para. 251)
In short, the Tribunal found that (1) China was claiming EEZ-type rights over waters to which the Convention did not grant it EEZ-type rights, waters defined by the NDL; (2) those claims were based on a theory of “historic rights”; and (3) even if China had had “historic rights” over those waters, such rights could not trump the EEZ rights of another state over the same waters.
C. What did the Decision say about China’s historic rights?
Given that the Tribunal decided that historic rights, even if they existed, were invalid against rights under the Convention, it was not strictly speaking necessary for it to spend time on the issue of whether such rights did in fact exist in China’s case. Nevertheless, it did offer some interesting observations.
The core of the Tribunal’s comment on historic rights lies in its (unstated) analogy to rights acquired by prescription (also known in real estate law as adverse possession) in domestic legal systems: if you do something wrongfully long enough and others don’t effectively object, then your wrong can ripen into a right. The Tribunal put it this way:
[T]he Tribunal notes that historic rights are, in most instances, exceptional rights. They accord a right that a State would not otherwise hold, were it not for the operation of the historical process giving rise to the right and the acquiescence of other States in the process. It follows from this, however, that the exercise of freedoms permitted under international law cannot give rise to a historic right; it involves nothing that would call for the acquiescence of other States and can only represent the use of what international law already freely permits. (Decision, Para. 268)
In other words, if you’re just doing what you already have a right to do, and what others have no right to object to you doing, it can never ripen into anything more than that.
The Tribunal then observed that engaging in navigation, trade, and fishing on high seas beyond territorial waters simply represents the exercise of high seas freedoms already permitted by international law. Nobody can object to it, and such activities therefore cannot form the basis for the emergence of a historic right. (Decision, Para. 270) What is needed for a historic right is evidence that you took more than you had a right to take, and that others acquiesced:
Evidence that merely points to even very intensive Chinese navigation and fishing in the South China Sea would be insufficient. Instead, in order to establish historic rights in the waters of the South China Sea, it would be necessary to show that China had engaged in activities that deviated from what was permitted under the freedom of the high seas and that other States acquiesced in such a right. In practice, to establish the exclusive historic right to living and non-living resources within the ‘nine-dash line’, which China now appears to claim, it would be necessary to show that China had historically sought to prohibit or restrict the exploitation of such resources by the nationals of other States and that those States had acquiesced in such restrictions. In the Tribunal’s view, such a claim cannot be supported. (Decision, Para. 270)
The Tribunal said it knew of no evidence that China had historically regulated or controlled fishing in the SCS beyond its territorial sea, and of course it could not even have attempted to regulate access to non-living resources of the seabed, since extraction of seabed resources is a very recent historical phenomenon.
 See Decision, Para. 190:
In the Philippines’ view, the nature of China’s claim as one of sovereign rights and jurisdiction is confirmed by China’s conduct in (a) seeking to ban fishing by other States within the ‘nine-dash line’; (b) interfering with the Philippines’ petroleum exploration activities; and (c) offering concessions to oil blocks in areas within the ‘nine-dash line’ but beyond the possible limits of China’s entitlements under the Convention. At the same time, the Philippines considers that China’s conduct makes clear that its claim is not to sovereignty over the entire area within the ‘nine-dash line’, insofar as China has repeatedly asserted that it respects freedom of navigation and overflight in the South China Sea.162 The Philippines also notes that this interpretation of China’s position has been adopted by numerous Chinese scholars, including those with significant links to the government. (Internal footnotes omitted.)
See also Decision, Para. 207:
Since 1956, China has proclaimed a series of maritime zones—a territorial sea, a contiguous zone, a continental shelf, and an exclusive economic zone—that are, at least in general terms, in line with those anticipated by the Convention. Nevertheless, China’s repeated invocation of rights “formed in the long historical course” and its linkage of this concept with the ‘nine-dash line’ indicates that China understands its rights to extend, in some form, beyond the maritime zones expressly described in the Convention. The Tribunal therefore turns to the rights that China has actually invoked in the South China Sea. Much of the area encompassed by the ‘nine-dash line’, however, would also fall within a claim to an exclusive economic zone or continental shelf drawn from the various features of the Spratly Islands. Whether or not the Tribunal would agree that the Convention or the features support such entitlements, a matter discussed in Chapter VI below, the mere fact that China asserts rights in the South China Sea does not indicate that China considers those rights to derive from the ‘nine-dash line’. Where, however, China has asserted rights in areas beyond the maximum entitlements that could be claimed under the Convention, the Tribunal considers that such assertions indicate a claim to rights arising independently of the Convention. There are at least three instances when China appears to have asserted such rights.
 See Decision, Para. 180: “[T]he resolution of the Parties’ dispute . . . is complicated by some ambiguity in China’s position. As far as the Tribunal is aware, China has never expressly clarified the nature or scope of its claimed historic rights. Nor has it ever clarified its understanding of the meaning of the ‘nine-dash line’.” (Internal footnotes omitted.)
 See Decision, Chapter V.
 See Decision, Para. 213.
 See Decision, Para. 257:
Through the Convention, China gained additional rights in the areas adjacent to its coasts that became part of its exclusive economic zone, including the areas adjacent to any island entitled to such a zone. It necessarily follows, however, that China also relinquished the rights it may have held in the waters allocated by the Convention to the exclusive economic zones of other States.” See also Decision, Para. 262: “Accordingly, upon China’s accession to the Convention and its entry into force, any historic rights that China may have had to the living and non-living resources within the ‘nine-dash line’ were superseded, as a matter of law and as between the Philippines and China, by the limits of the maritime zones provided for by the Convention. This should not be considered exceptional or unexpected. The Convention was a package that did not, and could not, fully reflect any State’s prior understanding of its maritime rights. Accession to the Convention reflects a commitment to bring incompatible claims into alignment with its provisions, and its continued operation necessarily calls for compromise by those States with prior claims in excess of the Convention’s limits.
 The Tribunal could perhaps be criticized for going beyond the minimum necessary to resolve the dispute before it, especially in such a contentious case. I will leave the judgment on that issue to the reader. The Tribunal would be on much firmer ground if it were customary, or at least not rare, in international state-to-state arbitration for tribunals to engage in this kind of practice. Unfortunately, I do not know whether this is so.