The Sino-Philippine Arbitration on the SCS Disputes: An Academic Assessment of the Merits Award concerning China’s Historic

Rights in the SCS within USL

Michael Sheng-ti Gau (Professor/Director)

Law School of Hainan University

Research Institute for International Justice & Arbitration

Outline

• What happens to the USL? • Only Eastern Belt of SCS (WPS) can be touched by the Tribunal

• The Erasure of the USL? • USL symbolizes China’s territorial claims

• USL represents China’s provisional maritime claims

• China’s maritime claims based on historic rights within USL • In Southern WPS, China’s claims on historic rights is a moot issue

• In Northern WPS, whether China claims historic rights is unanswerable

What happens to China’s legal grounds underpinning the USL?

• The SCS Arbitration is not a class action. • There is only one applicant, the Philippines. • Vietnam, Malaysia, Indonesia, Brunei are third

parties • The Philippines is not suing China on their

behalf • The Philippines stated in the beginning that it

brought the disputes with China in WPS to the Tribunal

• So, the Tribunal’s jurisdiction is geographically confined to the Eastern Belt of SCS (WPS)

• China’s historic rights in SCS but beyond WPS cannot be touched by the Tribunal and remain intact after this arbitration

This is also recognized by the Tribunal

• The Tribunal…. • DECLARES that, as between the Philippines and China,

China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention; …

• Merits Award, page 473, para. 1203-B-(2).

What is USL for you?

USL symbolizes China’s territorial claims in SCS

• First appeared in 1947 in the map called Location Map of the SCS Islands

• The title of the map implies that USL served as China’s territorial claims over all islands and rocks in the SCS within this line

• After this arbitration, China is under no obligation to remove/erase USL with such a nature

• Territorial disputes are not concerning the interpretation or application of UNCLOS

• The award rendered by the Tribunal may not settle territorial disputes between China and the Philippines in WPS

• China’s legal positions in the territorial disputes remain intact

However, the line was crossed • The Philippines said in the arbitration that territorial disputes were not

submitted for resolution this time.

• Philippine oral arguments flied in the face of such a disclaimer.

• The November Hearing saw a theory of the undetermined legal status of the Spratly Islands and Paracel Islands, i.e. the territorial sovereignty over the Spratly Islands and Paracel Islands does not pertain to China.

• At that time no arbitrator stopped Philippine legal team from such deliberation beyond Tribunal’s mandate.

• Two arbitrators even engaged in the discussion eagerly, as indicated by the transcripts of the Hearing

USL represents China’s SCS provisional maritime claims

• USL is concerning sea boundary delimitation!! Why? • Two dashes were removed in the context of Sino-Vietnam

territorial and sea boundary delimitation negotiation in Gulf of Tonkin

• It means that USL is negotiable • China’s 2006 Declaration has excluded the Tribunal’s

jurisdiction over, inter alia, disputes concerning the interpretation or application of Arts 74, 83 of UNCLOS relating to sea boundary delimitation

• USL, as outer limits of China’s provisional maritime claim pending boundary delimitation negotiation, concerns Sino-Philippine future delimitation negotiation process which must applies Arts 74 and 83.

• The Tribunal is powerless to entertain such an issue, • the merits of award has no legal effects upon USL with

such a nature • No need to erase the USL with this nature.

The Philippines does the same

• The Philippines has the same practice of using dotted line to indicate the outer limits of its maritime claims pending drawing of sea boundary lines based on agreement

• See Figure 3.4 of Philippine Memorial submitted on 30 March 2014

• Dotted lines were used in northern and southern parts, called “provisional equidistance lines”

• It means that even before sea boundary lines are drawn based on agreement, a coastal State is still entitled to publish its outer limits of its provisional maritime claims

• How could the Philippines challenge China’s comparable practices in the first place?

China’s Maritime claims based on Historic Rights within WPS cannot be denied by the Tribunal

• Why?

• In Southern Part of WPS, China’s claims on historic rights is a moot issue

• In Northern Part of WPS, whether China claims historic rights is unanswerable by the Tribunal

• The fact that islands exist in the Spratly Islands Group

• …has been well recognized by Vietnam, the Philippines, and Malaysia

• China is left with no need to invoke historic rights to justify its law enforcement activities in the Southern Part of WPS

• these activities can all be justified by EEZ that China can claim

• It is pointless to challenge China’s historic rights to outlaw such China’s law enforcement actions

• The Philippines’ claims to challenge so-called “China’s claims on historic rights” in the Southern Part of WPS suffers from mootness.

“islands” exist in the Spratly Islands • Philippine counsel, Professor Sands, in July Hearing provided a Philippine

Supreme Court Ruling to the Tribunal that could confirm the existence of islands in the Spratly Islands.

• “The Philippines Supreme Court has affirmed the constitutionality of RA 9522 in its 2011 judgment in the case of Magallona v Ermita. The Supreme Court ruled in that case that the Philippine Congress' decision to classify the Kalayaan Island Group as a regime of islands under the Republic of the Philippines consistent with Article 121 of UNCLOS: ‘... manifests the Philippine State's responsible observance of its pacta sunt servanda obligation under UNCLOS ...

• It seems hard to imagine that Philippine top legislative and judicial bodies would deny the existence of islands in KIG while holding KIG to be a regime of islands.

“islands” exist in the Spratly Islands? • on 4 August 2009 the Philippines forwarded a NV to the UN

to protest a Vietnamese unilateral submission of outer limits of the ECS

• “[the] Submission for Extended CS by … Vietnam lays claim on areas that are disputed because they overlap with those of the Philippines’.”

• the Vietnamese unilateral submission provided a triangle-shape-area which is

• far beyond the limits of 200 nautical miles from the archipelagic baselines of the Philippines facing WPS.

• less than 200 nautical miles but beyond 12 nautical miles from KIG maritime features.

• Most probably this is because some KIG maritime features are considered as “islands”, unless the Philippines used its archipelagic baselines…

• 8 years have passed without seeing Philippine submission to CLCS concerning its extended CS in SCS.

• It means that in 2009 the Philippines admitted the existence of certain “islands” in KIG.

• Until 31 October 2017 this Philippine protesting NV remains on CLCS website. Clearly, the Philippines continues to believe that “islands” exist in KIG even after MA was granted.

“islands” exist in the Spratly Islands • until 31 October 2017 the Government of Vietnam

has believed that “islands” exist in Nansha Islands or Spratly Islands.

• This is proved by Vietnam’s NV on 8 May 2009 opposing three China’s NVs dated on 13 April and 7 May of 2009.

• As said by this Vietnam’s NV, “[the] Hoang Sa (Paracels) and Truong Sa (Spratlys) archipelagos are parts of Viet Nam’s territory.”

• The identical position was repeated in its NV on 18 August 2009 forwarded to the UN challenging two Philippines NVs (serial no. 000818 and 000819) dated on 4 August.

• Given the definition of “archipelagos”, it seems hard for Vietnam to deny the existence of “islands” in the Spratly Islands while claiming Truong Sa as an archipelago.

“islands” exist in the Spratly Islands • On 23 June 2016 Malaysia sent a NV to this

Tribunal, recalling its sovereignty claims over a number of SCS features.

• Malaysia “may also have overlapping maritime entitlements (including an extended CS) in the areas of some of the features that the Arbitral Tribunal has been asked to classify.”

• For Malaysia, fully entitled islands must exist in Spratly Islands.

• Indeed, the 2009 Malaysia-Vietnam Joint Submission to the CLCS was not based on Malaysia-claimed islands in the Spratly Islands.

• However, it is one thing for a State to consider some maritime features it claims qualify as islands as a matter of fact and law.

• It is another thing for that State to choose to use (or not to use) those islands to justify its EEZ and CS entitlements

Whether China claims historic rights in Northern Part of WPS is unanswerable by the Tribunal • In WPS, cutting out the EEZs generated by

Spratly Islands, Pratas Islands, and Taiwan

• The yellow color zone is the only possible area for China to invoke historic right to justify its maritime jurisdiction, if Scarborough Shoal is not an island

• However, whether Scarborough Shoal is an island or not, cannot be answered by the Tribunal

• The Tribunal lost legal ground to entertain the issue of China’s historic right in the yellow color zone.

Why was Tribunal powerless to decide if Scarborough Shoal is an island or not?

• Overall speaking, Philippine Submissions 3, 4, 6, 7 suffer from mootness

• JA invoked the 2011 Philippine-Sino exchange of NVs to prove that the four Submissions reflected the disputes concerning the legal status of nine maritime features with names.

• In fact, Philippine 2011 NV focused on relevant KIG geological features (without names) that may generate territorial sea, EEZ or/and CS.

• Inconsistent with the formulation of the four Submissions, Philippine 2011 NV identified no KIG geological features incapable of generating territorial sea, EEZ or/and CS.

• Using Nansha Islands as a unit to claim maritime entitlements under UNCLOS, China’s 2011 NV did not specify any feature capable or incapable of generating territorial sea, EEZ and CS, either.

• How can it be possible for any Sino-Philippine disputes concerning the legal status of those nine particular features (including Scarborough Shoal) to have been crystallized this way?

One more thing

What happens to the Philippines’ Traditional Fishing in territorial water of Scarborough Shoal (Submissions 10)

• Now the Philippines’ fishing vessels are coming back

• Does it mean that China complies with the Merits Award which confirms such Philippine right?

• I guess not

• The so-called Philippine traditional fishing right there is not real… • The premise of such rights is that the Philippines has or claims no sovereignty over that water

• this is totally against Philippine position for that water, before, during, and after this arbitration

• The Philippines claims sovereignty over Scarborough Shoal and its adjacent water

• It takes away the legal ground of the Philippines’ irreconcilable claim of traditional fishing right there

• If the Philippines’ traditional fishing right becomes real, does it mean that the Philippines starts to abandon its sovereignty claim and recognize Chinese sovereignty over that water and that “rock”?

• Perhaps China will welcome such recognition by the Philippines,

• Even so, no need for China to recognize Philippine traditional fishing rights in order to allow Philippine fishing vessels to come back