Gray Area in the Deep Blue: The International Legal Struggle Over the South China Sea

By DOMINIC SOLARI


In recent years, many countries like the Republic of the Philippines have taken legal recourse in response to the People’s Republic of China’s increasingly assertive actions in the South China Sea. In 2013, the Philippines initiated a case against China in the Permanent Court of Arbitration (PCA), alleging that China had violated its sovereignty by extending control over key parts of the South China Sea. In 2016, the PCA finally reached its verdict, which favored the Philippines.[i] While the facts of the case are certainly important, the manner and effect of arbitration are of more relevance to the present discussion about international maritime law.

The first noteworthy characteristic of the Philippines’ case was the Filipino government’s decision to bring a case against the Chinese at the PCA as opposed to the International Tribunal for the Law of the Sea or the International Court of Justice.[ii] Arbitration in these two bodies would have required the acquiescence of both parties, which China was unwilling to offer. Furthermore, the International Tribunal for the Law of the Sea and the International Court of Justice are permanent bodies which sit in perpetuity.[iii] The PCA, on the other hand, is a broad framework for disputes which creates a panel of adjudicators from a slate of “Members of the Court” on an as-needed basis when cases arise.[iv] Although the latter difference is likely less relevant to the Philippines’ decision to use the PCA than the former, it is a noteworthy trait that distinguishes the PCA, and the PCA’s usage suggests that such a method of as-needed formation of adjudicating panels is still a relevant method of international legal relations.

Moreover, considering the downsides of the PCA, participants in the organization and even signatories of the original convention which formed it are not bound to abide by the body’s authority structure as the panels are formed on an as-needed basis. China’s response to the 2016 PCA ruling, which favored the Philippines, is a strong example of the PCA’s lacking efficacy. China has acceded to both the 1899 founding convention of the PCA and the 1907 founding convention.[v] However, in so doing it did not bind itself to the body’s authority, partially because there was no specific body or panel per se to acquiesce to at the time. Such is the fickle nature of international adjudication; it requires the consent of both parties to be considered legitimate.

Furthemore, the Phillipines employed a clever strategy in its adjudication case against China in 2013. Instead of seeking a ruling on the sovereignty of the disputed territories (whether the land was Chinese or Filipino), the Filipino government questioned the definition of the maritime features in the South China Sea, as different features carry different rights in international law.[vi] The United Nations Convention on the Law of the Sea (UNCLOS), a document to which both China and the Philippines are party, establishes the rights which accompany different maritime territory and the borders of those territories.[vii] The most germane to the present case is the distinction between islands, rocks, and low-tide elevations. Under UNCLOS, islands carry extensive maritime privileges including territorial sea and economic zone rights for hundreds of nautical miles surrounding their shoreline. By contrast, rocks only afford the owner twelve nautical miles of territorial sea surrounding the formation. Low-tide elevations, on the low end, carry no entitlements of territory around them.[viii]  Prior to the ruling, China claimed the Spratly “islands,” one of their contested possessions in the South China Sea, were in fact islands and so carried the aforementioned jurisdictional rights. However, as the Philippines contended and the PCA found, the Spratlys were actually only rocks with several low-tide elevations, giving the possessor twelve nautical miles at most.[ix] As a result of the PCA’s ruling, China’s legal territorial claims had shrunk significantly–all on the basis of definitions.

Ultimately, one’s opinion on the ruling of the PCA is less relevant to the body of international maritime law than the unique nature of the Philippines-China case. As mentioned, the Philippines’ choice to use the PCA over another body sets a precedent for the future of international maritime law, suggesting that ad-hoc adjudication between nations is by no means a thing of the past. Additionally, the case highlights the importance of definitions and the various strategies available to an aggrieved party when pursuing an international legal ruling. Ultimately, the situation in the South China Sea shows no signs of quick resolution as China remains firm in its denial of the 2016 PCA ruling. Despite China’s resistance, these events demonstrate the important role international maritime adjudication will play in geopolitics for the foreseeable future, as different parties continue to employ subtle, novel, and complex strategies.


 

[i] William Pesek, Making Sense Of the South China Sea Dispute, FORBES MEDIA, August 22, 2017. https://www.forbes.com/sites/outofasia/2017/08/22/making-sense-of-the-south-china-sea-dispute/#2db9f3961c3b

[ii] Euan Graham, The Hague Tribunal’s South China Sea Ruling: Empty Provocation or Slow-Burning Influence, COUNCIL ON FOREIGN RELATIONS, August 18, 2016, https://www.cfr.org/councilofcouncils/global_memos/p38227

[iii] History, INTERNATIONAL COURT OF JUSTICE, 2019 https://www.icj-cij.org/en/history

[iv] Introduction to the PCA, PCA-CPA, 2019, https://pca-cpa.org/en/about/introduction/

[v] Contracting Parties, PCA-CPA, 2019 https://pca-cpa.org/en/about/introduction/contracting-parties/

[vi] Euan Graham, The Hague Tribunal’s South China Sea Ruling: Empty Provocation or Slow-Burning Influence, COUNCIL ON FOREIGN RELATIONS, August 18, 2016, https://www.cfr.org/councilofcouncils/global_memos/p38227

[vii] United States Convention on the Law of the Sea, UNITED NATIONS, 2004 https://www.congress.gov/congressional-report/108th-congress/executive-report/10

[viii] United States Convention on the Law of the Sea, UNITED NATIONS, 2004 https://www.congress.gov/congressional-report/108th-congress/executive-report/10

[ix] Euan Graham, The Hague Tribunal’s South China Sea Ruling: Empty Provocation or Slow-Burning Influence, COUNCIL ON FOREIGN RELATIONS, August 18, 2016, https://www.cfr.org/councilofcouncils/global_memos/p38227

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s