No Restraint: Judicial Activism in the South China Sea Arbitration Ruling

Last month, a tribunal at the Permanent Court of Arbitration ruled on the Philippines v. China case regarding South China Sea maritime rights. The arbitral panel had an opportunity to chart a constructive approach to one of the foremost legal questions of the Asia-Pacific. However, where it should have chosen to foster mutually cooperative tendencies on ill-understood provisions of the law, the award performed a disservice with consequences that will reverberate for a considerable time to come. On July 12, any illusion of judicial fair-play and moderation in the case was irretrievably shattered.

In a sweeping judgment that was as harsh as it was reckless, the arbitral tribunal in The Hague constituted under the United Nations Convention on the Law of the Sea (UNCLOS) issued a thoroughly one-sided award, ruling that many of China’s maritime claims – and actions in defense of those claims – in the South China Sea were contrary to UNCLOS and had thereby violated the Philippines’ sovereign rights and freedoms.

The ruling was harsh because although the arbitrators enjoyed ample latitude to carve out a constructive, mid-path interpretation of a critically important but ill-defined provision of maritime law (Article 121 of UNCLOS regarding the definition of “rocks” and “islands”), it instead chose to indulge in a tortuous train of legal thought that lacked basis in case law and produced a zero-sum outcome that overwhelmingly favored Manila. The ruling was reckless because the arbitrators dismissed an earlier ruling in sea law (regarding “historic rights” in maritime spaces) with a breeziness that was inversely proportional to its tenuous reasoning on the “island/rock” issue. At minimum, the panelists bore an obligation to lay out a reasoned basis for overturning legal precedent. Instead, they resorted to a superficial explanation that was lifted almost word-for-word from the Philippines’ March 2014 memorial to the court.

Itu Aba – from “Island” to “Rock”

One of the most significant elements of the ruling was its finding that Itu Aba, the largest feature in the Spratly group, currently occupied by Taipei, is not an “island” capable of generating a 200 nautical mile exclusive economic zone (EEZ) but is instead merely a “rock” generating only a 12 nautical mile territorial sea. The ambiguity of Article 121(3) regarding the definition of an “island” capable of generating an EEZ has long vexed legal specialists and lay persons alike: in order to qualify as an island, a feature must be able “to sustain human habitation or economic life of [its] own.”

The wording that became the agreed text in April 1975 was the product of an informal consultative process which left few records of its work due to the deep divisions among the state parties regarding the distinction between islands and rocks. No consistent trend had been discernible in state practice. Unable to form a consensus on this “island/rock” distinction, the Meetings of the State Parties of the Law of the Sea Convention (SPLOS) have periodically prevented statutory international expert bodies from weighing in on the issue until the divergence of views is resolved.  Taking the cue, international courts have found artful ways to navigate around this contested definition in the course of maritime delimitation cases. The result was a de facto literalist bent to the interpretation of Article 121(3)—to the somewhat preposterous point that even tiny features enjoyed the benefit of the doubt and were granted rights typically accorded to larger, fully entitled islands.

On July 12, the arbitral tribunal threw decades of jurisprudential caution out the window by directly addressing the distinction between “islands” and “rocks,” and added an arbitrary “historical use” test in the case of features that are difficult to define.  Effectively, henceforth, features “which haven’t sustained human habitation or economic life of its own” are to be categorized as “rocks.” Itu Aba in its natural form, however, can sustain human habitation and economic activity and has shown it to be the case in recent history. As such, the tribunal proceeded to heap another disqualifying test: the “human habitation” referenced in Article 121(3) was to “be [now] understood to involve the inhabitation of the feature by a stable community of people for whom the feature constitutes a home and on which they can remain.”

Having substantially transformed the meaning of Article 121(3) from “rocks which cannot sustain human habitation or economic life of their own” to “rocks which haven’t sustained a settled community of inhabitants or economic life of their own” (Itu Aba has served as a temporary residence for extended periods but not a permanent home), the tribunal thereafter struck down the capacity of Itu Aba and every other high-tide feature in the Spratly group to generate an EEZ or continental shelf.

The Tribunal’s interpretation bears little resemblance to the letter or spirit of Article 121 and its reasoning situates itself at the outer end of the academic literature on the subject. The provision lays down no requirement – implicit or otherwise – that the “human” presence referenced be an exclusively civilian one; that the “habitation” on the feature be a “non-transient one who have chosen to stay and reside;” that the feature must furnish an abstract “proper standard” of lifestyle; or that the feature’s entitlement was exclusively intended to benefit an indigenous population. And while the object and purpose of Article 121 was indeed intended not to enable a tiny feature to generate a disproportionately large entitlement to maritime space, there is utterly nothing in the official record of the Law of the Sea negotiations to suggest that a “stable group or community” standard was envisioned to qualify a feature as a fully-entitled island that can “sustain human habitation.”

“Historic Rights” and the Nine-Dash Line

“Historic rights” in maritime spaces obtain in two forms – as an exclusive right and as a non-exclusively-exercised right. The former, typically as a “historic title” or “historic waters” right, pertains to maritime areas appurtenant to a mainland coast, bears the hallmark of state sovereignty, and is directly referenced in the territorial sea provisions of UNCLOS. By contrast, in waters within a semi-enclosed sea that were hitherto the high seas but have since become part of a coastal state’s exclusive maritime zones, a privately-acquired and non-exclusively exercised historic right of access may continue to prevail. This latter right originates not in the text of UNCLOS but from the body of general and customary international law that is preserved by UNCLOS and is applicable in each of the maritime zones created by it.

The arbitral tribunal was right to observe that China cannot enjoy any form of exclusive “historic rights” in the South China Sea that is not appurtenant to its mainland coast. Especially in waters that are within its nine-dash line, such exclusive rights to fish or conduct minerals-related activity has been decisively superseded by UNCLOS. However, the tribunal was wrong to observe that China cannot enjoy a non-exclusive “historic right” of access where traditional fishing is concerned, in waters that are within its nine-dash line but have since become part of the EEZ of its littoral neighbors in the South China Sea. Chinese nationals can indeed enjoy such a right.

In a landmark ruling in the late-1990s, Eritrea v Yemen, the International Court of Justice (ICJ) ruled that there are “important elements capable of creating “historic rights” [in the semi-enclosed Red Sea] …falling short of territorial sovereignty.” So long as the right of access for traditional fishermen “constituted a local tradition, [it was] entitled to the respect and protection of the law … and was not qualified by the maritime zones specified under UNCLOS.” Mauritius v United Kingdom (2015) reconfirmed that “states may possess particular rights … by virtue of … local custom” which operate “for all intents and purposes equivalently” in each of the maritime zones created by UNCLOS.

On July 12, the tribunal cherry-picked the arguments that were expedient, disregarded those that could have validated a non-exclusive Chinese traditional fishing right of access within the nine-dash line, and was remiss in laying out a reasoned basis for its casual ignoring – and overturning – of a landmark precedent.

The tribunal did agree that Manila is entitled to reach beyond the text of the Convention to enjoy a non-exclusively exercised traditional fishing right in the territorial sea of the Scarborough Shoal, which was part of the body of general international law preserved by UNCLOS. The tribunal’s reasoning for why China was not granted similar allowances in foreign EEZs was unsatisfactory. Its limitation of artisanal fishing rights to territorial seas rather than other exclusive maritime zones constituted an arbitrary narrowing of the jurisprudence created in Eritrea v Yemen.

The tribunal offered no reason why the established jurisprudential basis by which non-exclusive “historic rights” form in maritime spaces is, as of July 12, legally unsustainable. In Eritrea v Yemen, the ICJ had reached beyond the Western legal tradition to imaginatively rule that such rights accrue as a sort of servitude internationale (i.e., as a sort of non-possessory right or interest in access and resources) in waters that were hitherto the “high seas” within a semi-enclosed sea but have since become part of a coastal state’s EEZ. By extinguishing this landmark ruling without so much as an explanatory footnote (in an award otherwise crammed with 1,498 footnotes), the tribunal also tore down an economically useful and rational concept – servitudes/easement – that both the ICJ and its predecessor, the PCIJ, have recognized in judgments spanning the 20^th century.

It also begs the question: what legal justification still remains for the preservation of this non-exclusive right of access in territorial seas, such as in the territorial sea of the Scarborough Shoal which the tribunal affirmed in favor of the Philippines? After all, a territorial sea, like an EEZ, is also an exclusive maritime zone and prior to its expansion from 3 to 12 nautical miles by UNCLOS, the waters therein too, like in the case of the EEZ, had hitherto been the “high seas.” What’s good for the goose ought to be good for the gander.

Conclusion

The five-member arbitral panel enjoyed a golden opportunity to chart a constructive, mid-path approach to one of the foremost legal (and political) questions of the Asia-Pacific. It could – and should – have chosen to foster mutually cooperative tendencies on both these critically important but ill-defined or ill-understood provisions of the law. Had Itu Aba been ruled a fully-entitled island, it could have furnished a basis for Sino-Philippine oil and gas joint development in the overlapping area of entitlement. Now, with no geographic overlap to contend with and a de facto delimitation of the China–Philippines maritime boundary furnished, the principle of “shelving differences and seeking joint development” has been rendered hollow and the raison d’être that sustains the envisaged Code of Conduct undercut. Equally, had the tribunal re-confirmed that a local custom-based traditional fishing right was preserved across all the exclusive maritime zones in this semi-enclosed sea, it could have furnished an incentive for the nine-dash line to be thrown open on equal terms as a common fishing ground for all artisanal fishermen of every littoral state that borders the sea.

In lighting a judicial fire under the law and politics of the South China Sea and placing the two on a collision course, the arbitral tribunal has performed a disservice. The consequences will reverberate for a considerable time to come – with international law, likely, ending up the poorer.

A longer version of this article first appeared on China-US Focus.