[Lee Ki-beom] The rule of law in the South China Sea

An Arbitral Tribunal under Annex VII to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) made its final decision (with the secretarial assistance of the Permanent Court of Arbitration) on 12 July 2016 concerning the South China Sea dispute between the Philippines and China. The Philippines unilaterally addressed its written notification to China under the Annex VII arbitral procedure on 22 January 2013. Although China declared its non-appearance in the proceedings, the absence of a Party to the dispute does not constitute a bar to the proceedings in accordance with Article 9 of Annex VII to the UNCLOS.

The Arbitral Tribunal was successfully constituted under the relevant provisions in June 2013 and then decided in October 2015 that it had part of jurisdiction to entertain the application filed by the Philippines. It subsequently arrived at the final ruling last week. The Tribunal concluded that China’s claim to the nine-dash line is incompatible with the concept of the exclusive economic zone articulated in the UNCLOS, and that no feature in the Spratly Islands can have entitlement to the 200 nautical mile (NM, approximately 370.4km) exclusive economic zone and continental shelf.

The Government of China has drawn the nine-dash line on the maps published in China since 1953. However, it has never interpreted the meaning of the nine-dash line, making it unclear whether the country declared sovereignty over all the features within that area. In its ruling, the Arbitral Tribunal interpreted the concept of the nine-dash line in the way that China has asserted its historic rights to living and non-living resources within the nine-dash line. The Tribunal then concluded that the historic rights of China cannot be compatible with the sovereign rights of the Philippines over its exclusive economic zone.

The Arbitral Tribunal also interpreted Article 121(3) of the UNCLOS, which stipulates “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” In international law, the reason for differentiating a rock from an island is that an island can have entitlement to the 200NM exclusive economic zone and continental shelf while a rock can at most have the 12NM territorial sea. The Tribunal ruled out the possibility of elevating a rock to an island because it strictly interpreted the concepts of ‘human habitation’ and ‘economic life of their own’ included in Article 121(3). According to the Tribunal, the natural capacity of a feature as an island should allow a stable community of people to settle down and should not depend on external supply. After the Tribunal applied its own interpretation regarding Article 121(3) to the Spratly Islands, it concluded that most of the maritime area surrounding the Spratly Islands qualifies as the high seas excluding the 12NM territorial sea around rocks.

Even though China declared that it will not accept the final award of the Arbitral Tribunal, the award is legally binding according to Article 11 of Annex VII to the UNCLOS. After the decision of the Tribunal, China stirred tension in the South China Sea by carrying out military exercises. Raising such tensions does not help resolve this dispute. Rather, China should respect international law, or acknowledge the rule of law, in the South China Sea, which this arbitral award is taking the first step in establishing.

China cannot take exclusive control over the high seas in the South China Sea and should respect the freedom of the high seas. Even though China may be dissatisfied with the ruling of the Arbitral Tribunal, if it recognized this award, then it can have the initiative against Japan’s position regarding Oki-no-Tori-shima. China can more strongly argue its position in relation to legal issues if it helps establish the rule of law regarding the South China Sea. The rule of law will never weaken China’s rights in international law. In fact, whether China recognizes the award of the Tribunal will act as a touchstone in determining whether the country has the will to help maintain the rule of law in international relations.

By Lee Ki-beom

Lee Ki-beom is a research fellow at the ASAN Institute for Policy Studies in Seoul. – Ed.