July 13, 2016
On July 12, the tribunal hearing the case issued its ruling that can only be described as a huge win for the Philippines. Digesting all 507 pages of the award will take time, allowing only for preliminary judgments to be made. Below, I discuss several strategic implications.
The Scope of Lawful Maritime Claims in the South China Sea
In assessing the Philippine submissions, the tribunal greatly reduced the scope of maritime entitlements that states can claim in the South China Sea. First, the tribunal concluded that China lawfully, under the UN Convention on the Law of the Sea, claims historic rights to resources within the nine-dash line that appears on Chinese maps. Although China has not clarified the nine-dashed line or even explained officially what it means, the tribunal indicated that one potential explanation, as a claim to historic rights, was inconsistent with the convention. The tribunal reasoned that whatever historic rights or high-seas freedoms China enjoyed were “extinguished” when it acceded to the convention.
Second, the tribunal interpreted Article 121 of the convention, which outlines the “regime of islands.” In particular, the tribunal offered a four-part test for determining what constitutes an “island” and not a rock. This matters greatly because under the convention islands are entitled to a two-hundred-nautical-mile Exclusive Economic Zone, while a mere rock is entitled only to a twelve-nautical-mile territorial sea. The tribunal ruled that none of the naturally formed land features satisfied its four-part test and that no “islands” exist in the Spratlys from which China, or any other claimant state, can claim a two-hundred-nautical-mile EEZ.
Taken together, these two elements of the tribunal’s award greatly restrict what maritime zones China can claim. In fact, China can claim only a twelve-nautical-mile sea around those naturally formed land features in the Spratlys that would be deemed to be rocks or above high tide. According to the tribunal, any claim to either historic rights or to an EEZ would be inconsistent with the convention, and unlawful. In so doing, the tribunal decreased the value of claiming sovereignty over offshore islands by limiting the economic value that they create. If a land feature cannot generate a two-hundred-nautical-mile EEZ, giving states the exclusive right to resources in the water column and seabed, then the value at stake in these disputes has also declined.
The Meaning of an “Island”
Whether intended or not, the tribunal’s ruling on lawful claims to maritime zones in the South China Sea has much broader implications for all parties to UNCLOS. By offering an interpretation of what constitutes an “island” that can generate a two-hundred-nautical-mile EEZ, the tribunal created a international legal precedent about what constitutes a lawful EEZ claim from naturally formed land features.
That is, the tribunal has not only limited China’s lawful claims in the South China Sea under the convention. It has also potentially limited the lawful claims that other states can make from land features that would fail the test offered by the tribunal. Many states claim a two-hundred-nautical-mile EEZ from land features that would clearly be rocks and not islands according to the tribunal’s ruling. Japan, for example, claims a two-hundred-nautical-mile EEZ from Okinotorishima, a coral reef that consists of three rocks that are above high tide. The United States, too, claims EEZs from similar features, such as Kingman Reef in Micronesia. Under the precedent established by the tribunal, these features may not be entitled to the EEZ that states claim from them. In this way, the tribunal’s ruling has much broader implications for how all states interpret lawful claims under the convention.
The Endurance of Territorial Disputes in the South China Sea
The final strategic implication is that the tribunal’s award could not address the fundamental issue at stake in the South China Sea, which are the competing claims to territorial sovereignty over the Spratly Islands. The reason is simple: as a tribunal constituted under UNCLOS, it can only consider questions relating to the interpretation of the convention, such as the kinds of maritime zones states can claim. Because the treaty specifically omits territorial disputes, the tribunal lacks jurisdiction to adjudicate on the claims between China and the other claimants in the South China Sea over the sovereignty of the Spratlys.
Ironically, perhaps, by reducing what states can lawfully claim from the land features in the Spratlys, the tribunal’s ruling may have the unintended effect of intensifying the dispute over these land features even though the tribunal sought to minimize their importance.
M. Taylor Fravel is an associate professor of political science at MIT and the author of Strong Borders, Secure Nation: Cooperation and Conflict in China’s Territorial Disputes. He can be followed on Twitter @fravel.
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