Saturday, July 16, 2016

Melissa Loja on the Full Significance of the South China Sea Arbitration Award

It is important to bear in mind the underlying theory of the Philippines' submissions in order to appreciate the full significance of the conclusions of the Tribunal in the Final Award of In The Matter of an Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China, Final Award, 12 July 2016. According to the Philippines the legal basis of its claims to certain features and waters in the South China Sea is the United Nations Convention on the Law of the Sea (UNCLOS, Articles 76 and 77), not territorial title. For this legal basis to exist the following conditions must obtain:
  1. The features being claimed are found within the Exclusive Economic Zone (EEZ) of the Philippines. 
  2. These features are not encompassed by the maritime zones of any other feature in the Spratly Islands.
  3. These claimed features are low tide elevations.
The Philippines asked the Tribunal to declare that all three conditions obtain and that legal basis exists for its claim to Mischief Reef, Second Thomas Shoal, McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South).
     The Tribunal declared that all the claimed features are found within the Philippine EEZ, although Gaven Reef falls outside by a few metres. It found no feature in the Spratly Islands able to generate an EEZ which would encompass the claimed features. Mischief Reef and Second Thomas Shoal are low tide elevations but McKennan Reef is a high tide elevation; Hughes Reef is a low tide elevation but it forms a single unit with McKennan Reef; Gaven Reef (North) is a high tide elevations; and Gaven Reef (South) is a low tide elevation but it forms a single unit with Gaven Reef (North). 
     The significance of the foregoing findings is that the first condition obtains for all the claimed features, but the second condition obtains for Mischief Reef and Second Thomas Shoal only and not with respect to McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South). The third condition obtains for Mischief Reef and Second Thomas Shoal but not for McKennan Reef in relation to Hughes Reef and Gaven Reef (North) in relation to Gaven Reef (South), which are high tide elevations with 12 nautical mile territorial sea. Moreover their territorial sea overlaps with the Philippine EEZ. 
     In effect, the Tribunal found that the Philippines has legal basis to claim Mischief Reef and Second Thomas Shoal but it has no legal basis to claim McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South). Having no legal basis to claim McKennan Reef, Hughes Reef, Gaven Reef (North) and Gaven Reef (South), the Philippines is out of contention for these features and only China and Vietnam are the remaining claimants. However, in order for China and Vietnam to avail of the foregoing claims they have to accept the attribution of Mischief Reef and Second Thomas Shoal to the Philippines in the Final Award. 
      The Final Award declared that Scarborough is a rock and that fishing on Scarborough is a traditional right of both Filipinos and Chinese fishermen. The Final Award  did not declare that the Philippines owns Scarborough or that its fishermen alone can fish there.  These traditional fishing rights will be preserved no matter the outcome to the future settlement of the territorial dispute over Scarborough. The Final Award did not touch upon any other feature in the Spratly Islands, except to declare them rocks with 12 nautical mile territorial sea. It did not award any major feature to the Philippines.  It is possible that, in relation to Thitu, etc., in the future China and Vietnam will hold the Philippines to the conditions underlying its claim to features in the South China Sea. China and Vietnam might argue that the Philippines is estopped from changing its legal position (and its underlying conditions), especially as the Philippines' claims to all the features arose  from the same act - Presidential Decree 1596 - and invoked the same basis - contiguity or EEZ. However, before they could effect an estoppel against the Philippines in this way, China and Vietnam would have to accept the attribution of Mischief Reef and Second Thomas Shoal to the Philippines in the Final Award.  Written by Ms Melissa Loja, PhD candidate in the Faculty of Law, The University of Hong Kong.

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