Melissa Loja's Critical Legal Approach to the South China Sea Territorial Dispute (J History of IL)

"A Critical Legal Approach to the South China Sea Territorial Dispute"

Melissa H. Loja

Journal of the History of International Law

January 2018 (published online)

Abstract: The ‘law of nations’ that colonial powers invoked to claim the South China Sea islands was based not on international convention or custom but on their own municipal laws on guano concession. It provides that states have the exclusive right to assert title over distant islands where their respective citizens have engaged in economic activities. It was applied selectively to advance colonial and maritime interests and to suppress the claim of China. In their own records, the United States and United Kingdom acknowledged China’s prior and exclusive economic activities on the Spratly Islands and Paracel Islands, and consolidation of title over the Paracel Islands. The records were ignored and subsequently revised, thereby excluding China from availing of the rule. The Japanese peace treaties formalized China’s exclusion by relegating its claim to the same category as the claims that emerged from recent acts of occupation, and subjecting it to resolution by convention.

Melissa Loja on the China-Japan Dispute over the Senkaku/Diaoyu Islands (EJIL)

"Status Quo Post Bellum and the Legal Resolution of the Territorial Dispute between China and Japan over the Senkaku/Diaoyu Islands"

Melissa H Loja (PhD Candidate)
The European Journal of International Law
2017, Vol. 27, No. 4, pp. 979-1004

Abstract: This article ascertains whether Japan’s possession of the Senkaku/Diaoyu Islands has a legal basis that is opposable to China. It departs from the traditional approach that focuses on historic titles and ancient maps. It applies an alternative approach that is based on the status quo post bellum or the relative legal position of the parties at the end of armed hostilities. This approach is warranted by the practice of China, Japan and the Allied powers of defining the status quo in the East China Sea as a frame of reference for the future disposition of the islands. Primary records of their conduct in the period 1945–1952 reveal consensus that: (i) the islands are part of Nansei Shoto rather than of Formosa; (ii) they remained under the residual sovereignty of Japan and (iii) they were being claimed by Japan but not China. The conduct of the parties proximate to 1945–1956 indicate that there was no prior existing title to the islands that would contradict the status quo. Rather, during the period 1952 up to the critical date of 1970, the positive acts of the Republic of China and the acquiescence of the People’s Republic of China confirmed the status quo.  Click here to read the entire article.

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.