Vanishing Point of Jurisprudence : South China Sea Arbitration Case

jurisprudenceAt the time when Oppenheim gave the definition of International Law, Holland remarked that International law is the vanishing point of jurisprudence because it lacked sanction. The vocal disregard by China of the South China Sea Arbitration award brings back the circumstances when international law was not treated truly as law. After all, what is law if it cannot be enforced? The South China Sea (known as the West Philippine Sea to Filipinos) apart from being a crucial international shipping lane, a rich fishing ground, home to a highly bio diverse coral reef ecosystem, and believed to hold substantial oil and gas resources has been a disputed region among the six littoral states – China, Philippines, Malaysia, Brunei, Vietnam and Taiwan since a long time now. China has sketched a vague nine-dash line after removing the Gulf of Tonkin in 1949 which erased two of the dashes and presently, encompasses 80 percent or thereabouts of the Filipinos’ Exclusive Economic Zone. On 22 January, 2013, Philippines knocked the doors of the Permanent Court of Arbitration at the Peace Palace in Hague pursuant to Part XV of the United Nations Convention on the Law of Seas (UNCLOS). China and Philippines along with 166 other countries are members to the Convention which was adopted as the “constitution for the oceans”. The Permanent Court of Arbitration in a 479-page award dealt with the legal basis of maritime rights and entitlements in the South China Sea, the status of certain geographic features and the lawfulness of certain actions taken by China in the South China Sea.
In 2006, China excluded itself from the compulsory dispute settlement mechanism under the Convention regarding disputes relating to historic titles, sea boundary delimitation, sovereignty or other rights over continental or insular land territory, military activities and law enforcement activities. This justifies China’s non participation in the hearing. China vehemently criticized Philippines’ unilateral initiation of the arbitration as a typical abuse of law because it was a breach of the Declaration on the Conduct of Parties in the South China Sea (DOC) which provides for the resolution of disputes by friendly consultations and negotiations. The Tribunal in this regard, categorically held that the Declaration is merely a political agreement and not legally binding to bar the Tribunal’s jurisdiction.
What does the Tribunal declare?
Furthermore, the Tribunal dealt with various questions of interpretation. It declared that the “islands” encompassed by China within the notorious nine-dash line, including Fiery Cross and Mischief Reef, where it has built military bases are not “islands” within the meaning of the Convention as under Article 121, an island is permanently above water and unlike a rock can generate an Exclusive Economic Zone (EEZ) of up to 200 nautical miles if it is capable of human habitation. In contrast, a rock is incapable of human habitation and can only generate a territorial sea of 12 nautical miles. It also denied the existence of any historic right of China on the Spratly Islands – the bone of contention between the two countries on the ground that though they were historically used by small groups of fishermen and guano mining enterprises but such transient use does not constitute inhabitation by a stable community. The Hague based Tribunal also declared that China has caused “severe harm to the coral reef environment” by building artificial islands.
China denounced the pending decision of the International Tribunal as “null and void” even before it was pronounced. Probably, it knew ab initio that the ruling will be nothing but adverse. However, it is not the first time that a country with a permanent seat in the Security Council has disavowed an international pronouncement. The Permanent Court of Arbitration is having the Nicaragua v. United States moment when United States refused to observe the ICJ verdict in 1986 which was ruled in favour of Nicaragua. It is worthy to note that unlike the Permanent Court of Arbitration, the ICJ has an enforcement mechanism. Article 94 of the UN Charter lays down that in case of non-compliance of the decision, the other party may recourse to the Security Council, which may, if deem necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. Even so, the United States had its way by vetoing the resolutions demanding it to observe the Nicaragua verdict. The posture of China is no different.
Rejecting the verdict apart, China shows no hitch in blaming the Tribunal with impartiality and procedural injustice by saying that four of the five arbitrators in the panel were appointed by a Japanese jurist Shunji Yanai who even served as Japan’s ambassador to Washington. China appears to turn a blind eye to Annexure 7, Article 3 (e) of the Convention which provides that in case the parties fail to appoint arbitrators, the President of the International Tribunal for The Law of the Sea shall make the appointments, which in this case was Shunji Yanai when Philippines instituted the case in the Tribunal in 2013. Besides, China could have prevented this situation had it participated in the arbitration proceedings. Instead, it seems to tread along the lines of the jurist J G Starke who said, “Arbitration is a consensual procedure. States cannot be compelled to arbitrate unless they agree to do so… Their consent even governs the nature of tribunal established.”
What can be done?
Now that Philippines has got legal strength from the international verdict, it has no harm in engaging in bilateral negotiations with China regarding the dispute which China has for a long time been interested in. Certainly, the upshot of these negotiations will be a compromise between the two countries and not a win-lose outcome. Or on the contrary, China may arbitrarily withdraw from the UNCLOS under the shade of Article 317 of the Convention and still enjoy most of the advantages of the Convention like freedom of navigation, the rights of the Exclusive Economic Zone etc as part of the customary international law. However, China might not want to bid farewell to the Convention as it doesn’t have the risk appetite to imperil its international image as a permanent member of the Security Council bearing the primary responsibility to maintain international peace and security.
Strangely enough, in this Sea dispute, the so-called big brother – the United States finds itself in an awkward position as it has not only defied international decisions in the past but also is not a signatory to the UNCLOS. However, it can continue using its ‘rebalancing doctrine’ and giving military and diplomatic backing to its allies like Philippines.
Need for an enforcement mechanism
It is germane to note that superpowers have time and again shown the tendency to disavow adverse rulings without reasonable rhyme or reason. This leads us to doubt once again the legal character of international law and subscribe to Holland’s view. Like it or not, Sir John Austin’s concept of sanction as an essential attribute of law is what the international community needs to ponder on today. If a state is a signatory to a convention, it must abide by its terms or face the consequences. That will secure a civilized world order without having to intrude into state sovereignty. Courts and tribunals like the Permanent Court of Arbitration must have an effective enforcement mechanism because decisions which are binding only in words and not in deeds are of no avail and affirm the rule of ‘might makes right’ which undermines the efficacy of international law. For now, China can jettison the award of the Permanent Court of Arbitration but it cannot do the same with the decision of the highest tribunal – the international community. It might want to make a just choice in this tight spot.