South China Sea Dispute: Sovereignty over the Scarborough Shoal

South-China Sea Dispute: Sovereignty over the Scarborough Shoal Yewande Olu-Ibukun BSc| MA| PhD (In view) Swansea University Abstract The Philippine islands are at the focal point of momentum sea debate in the South China Sea (SCS). The Philippines has had maritime disputes with various nations, including the US. Presently, policy consideration is centered around power question between the Philippines and China on the Scarborough1. China's affirmation of the South China Sea in its 2009 recording with the UNCLCS and its current activities to avoid Philippine anglers from the waters around Scarborough Shoal encouraged the Philippines to seek for assistance from the international arbitration tribunal2. The paper will identify the privileges of the Philippines to submerged elements as a feature of its continental shelf by examining the brief historical standpoints of the Philippine archipelago and the late activities by the Philippines to adjust its archipelagic cases to UNCLOS. Keywords: South China Sea, Scarborough, International Arbitration Tribunal, Philippine Archipelago 1 2 Rosen, M. Philippines Claims in the South China Sea: A Legal Analysis (CNA Occasional Paper 2014) at pag 1 Romero, A. China’s Maritime Ships operating within the Philippine Territory (Boston Global Forum 2013) 1 Introduction The South China Sea is a halfway encased waterway in the western Pacific Ocean covering a zone of right around 3.5 million square kilometers 3 also, home to more than 30,000 little islands and reefs extensively disseminated crosswise over three archipelagos4. The ocean is bordered by several countries: on the east is Vietnam, on the south are China, the Hainan Island and Taiwan; on the north are Malaysia, Brunei, Singapore and Indonesia; and to the west lies the Philippines5 The sea is a major shipping/transport route to over half of the world’s oil tanker traffic and its merchant vessels by tonnage with an estimated $4.5tn (£3.4tn) in trade6 7; with rich fishing grounds that caters to the livelihoods of thousands of fishermen within the region, it is also believed to hold substantial oil and gas resources8. China’s historical claim to a vast majority of the islands and reefs on the sea is defined by a ‘nine-dash-line’ which stretches hundreds of miles across the south and eastern parts of the Hainan province; and it is on this basis that China lays strong claims to the territories it controls, carrying out unlawful and destructive acts to keep other countries from encroaching on their space9 10. The islands, banks, shoals and surrounding waters – maritime features China claims accounts for hundreds of islands, islets, sandbanks, rocks, and shoals (Paracel, Spratly, Scarborough Shoal and Macclesfield Bank, and the Pratas Islands) throughout the South China Sea region11 and in recent times, China lays claim to more islands and maritime features than was originally stipulated in the jurisdiction covered and demarcated by its nine-dash-lines12. Several other Asian countries lay claim to different features in the SCS with China being involved in every dispute: the Paracel Islands are disputed by China, Taiwan and Vietnam; the Spratly Islands are disputed by China, Taiwan, Malaysia, The Philippines, Vietnam, and Brunei; the Scarborough Shoal is claimed by the Philippines, China and Taiwan; and the maritime boundaries of the Gulf of Tonkin are also disputed by China and Vietnam13. These claims stem from territorial rights that have gone on for centuries and with the failure of bilateral relations in resolving issues, international law has been sought to bring about resolutions that are backed by law and mandatory to uphold. 3 Sreenivasa, R.P. The South China Sea Arbitration (The Philippines vs China): Assessment of the Award on Jurisdiction and Admissibility (2016) 15 (2) JIL 265-307 at 265 4 Lunn, A and Lang, A. The South China Sea Dispute (House of Commons Library Briefing Paper 7481, 2016) at page 1 5 See Sreenivasa, R.P, note 3, above, at page 266 6 Holmes, O. and Phillips, T. South China Sea Dispute: What you need to Know about The Hague Court Ruling (The Guardian, 2016) 7 See Lunn, A and Lang, A, note 6, above, at page 2 8 See Sreenivasa, R.P, note 3, above, at page 267 9 Austin, G. Why Beijing’s South China Sea Moves Make Sense Now (The National Interest, 2015) at page 1 10 See Lunn, A and Lang, A, note 6, above, at page 3 11 ISDP Understanding China’s Position on the South China Sea Disputes (Institute for Security and Development Policy, 2016) at page 1 12 See Rosen, M, note 1, above, at page 3 13 See Lunn, A and Lang, A, note 6, above, at page 4 2 The South China Sea is of great economic significance in East Asia, rich in fisheries and abundant natural resources and has understandably been a source of maritime and territorial dispute between several ASEAN countries. These countries have been engaged in disputes over sovereignty and historical rights over the islands, maritime features and the surrounding waters around the South China Sea. The area is also home to hundreds of geographical features living below and above the sea level. However, for the purpose of this research, the focus would be between China and the Philippines. China and the Philippines have been clashing over almost every aspect of the SCS14. China claims sovereignty and historic rights of almost 100 percent of the sea elements of SCS which lie past the 12-mile regional ocean limit of China and other bordering countries15. While the Philippines also claim some islands but most importantly, dispute China’s claims and general unlawful behavior over the natural resources in the sea. China has utilized its claim to control the SCS for over 2000 years conducting surveys, creating and renaming islands, and publishing maps showing its territories within and around the dash-lines to prevent neighboring countries from encroaching on their ‘alleged’ property. The nine-dash-lines historically represent China’s title to the maritime features enclose within that demarcation. It gives China fishing rights, navigation rights, and the ability to carry out planned marine activities and improvement in the waters and on the mainland rack encompassed by the line161718. On the Scarborough Shoal, the Philippines claim that China continually interferes with their ability to carry out fishing activities on the Scarborough Shoal, a popular fishing ground for Asian countries thereby preventing them from pursuing their livelihoods. China on the other hand claims that the water surrounding Scarborough Shoal and took actions to prevent Philippine fishermen from using the grounds. This increased the already brewing tensions between both countries with Philippine filing a report against China for violating Article 2(3) of the Convention, which gives that "sovereignty over the regional ocean is practiced subject to this Convention and to different tenets of international law 19. This high tide feature is of no economic value to the Philippines as they can neither derive economic value from it nor sustain human life. However, they use the surrounding waters to carry out traditional fishing activities, while China claims sovereignty over them. The Tribunal investigated and ruled that their disputes did not stem from maritime boundary delimitation or sovereignty claims of the Scarborough Shoal20. They also did not see the importance of having traditional shipping rights before using the fishing grounds stating that past and present generations have carried out fishing activities without problem up until recently. They termed China’s actions as unlawful and 14 See Rosen, M, note 1, above, at page 4 See Sreenivasa, R.P, note 3, above, at page 269 16 Jinming, L. and Dexia, L. The Dotted Line on the Chinese Map of the South China Sea: A Note (Oceanic Development and International Law, 2003) at 294 17 Zhiguo, G. and Jia, B. The Nine-Dash Line in the South China Sea: History, Status and Implications (2013) 107(1) AJIL 98-124 at 124 18 See Sreenivasa, R.P, note 3, above, at page 270 19 UN Convention on the Law of the Sea, Art.2(3) 20 See Jinming, L. and Dexia, L., note 14, above at page295 15 3 condemned China for being discriminatory i.e. only allowing their nationals access to the waters surrounding Scarborough Shoal. Furthermore, the Philippines allude to the zone of the SCS that it controls as the West Philippine Sea; and started arbitration under Annex 7 of the Convention on the 22 January 2013 against China keeping in mind the end goal to determine disagreements regarding both nation's separate sea qualifications and exercises in the SCS21. The Philippines dispute China’s claims on the following basis: First is the Source of Maritime Entitlements in the South China Sea and China’s Claim to Historical Rights where the Philippines contend with China over the source of its maritime entitlement because China claims to own a vast majority of the maritime features in the SCS, an issue that is also disputed by other countries22. Sovereignty is typically determined under customary international law23, and the country that owns the islands controls the surrounding sea and its resources including fishing and seabed rights. The dispute between both countries stems from China’s alleged historical rights over the islands and other oceanic elements on the SCS, with the Philippines expressing that China's cases are contrary under the 1982 UNCLOS. China was not particularly bent on sovereignty, rather, they wanted to use the ninedash-lines to ban other countries from fishing in the SCS, hence interrupting the exploration, and offering discounted concessions to oil blocks operating within the ninedash line – an act that is completely outside the realm of their authority under the Convention24. China’s controversial sovereignty claim in the South China Sea comes from its historical rights within its nine-dash-lines25. These historical claims are not backed by evidence, making it difficult to prove. The Philippines dispute China’s claim on the grounds that the nine-dash-lines are invalid according to the international law, as legitimate ownership and limits can only be given by the Convention and not through transfer of rights based on unfounded historical control26. The Tribunal concluded that the exact coordinates of the nine-dash-lines were not properly defined, legitimate, and were inconsistent with the EEZ accommodated in the Convention, and all things considered, there was no legitimate reason for China to guarantee notable rights to resources in the nine-dash-lines27. The lack of coordination works to their disadvantage as the nine-dash-lines on Chinese maps encompasses almost the entire SCS, making it all the more unrealistic considering other countries bordering the Sea with competing claims to some maritime features and territorial waters28. The Philippines’ further argue that historical rights not backed by evidence do not matter as each country must abide within the limits set by the Convention especially with regard 21 See Sreenivasa, R.P, note 3, above, at page 271 The Philippines v. The People’s Republic of China Award on Jurisdiction, para. 152 23 th Wallace, R. and Martin Ortega, O. International Law (Sweet and Maxwell, 7 Edition 2013) at page 236 24 Beckman, R. China, UNCLOS and the South China Sea (Faculty of Law, National University of Singapore 2011) ay page 28 25 See Beckman, R., note 24, above, at page 28 26 The Philippines v. The People’s Republic of China Award on Jurisdiction, para. 160 27 See Lunn, A and Lang, A, note 6, above, at page 7 28 See Holmes, O. and Phillips, T, note 8, above 22 4 to the nine-dash-line on Chinese maps29. Their claim to the waters, seabed and oceanic components in the SCS are consequently conflicting with the Convention 30. The Tribunal eventually concluded that only the convention can define the scope and limits of each country’s maritime entitlements – which cannot be breached; and China’s claims to sovereignty and historic rights within the South China Sea are contrary to the Conventions limits, and as such, the Conventions definition of maritime entitlement supersedes all historical rights and sovereignty claims that exist31 The second basis is on the depiction of Maritime Features in the SCS. The meaning of individual maritime features has additionally been an issue debated by the Philippines, as they looked for a decision on whether certain oceanic components asserted by both nations were appropriately described by the Convention as islands, rocks, low-tide heights or submerged banks32. These contending nations contend over the meaning of every component particularly when it includes separating amongst rocks and islands. In light of international law, just actually shaped islands that are above ocean level at high tide can manage human home, and create a regional ocean or mainland rack. Islands that can't maintain human or monetary life are considered as rocks which can just have a regional ocean, not an EEZ or mainland rack33. With regards to low tide elevations or submerged banks, several islands owned by China were below sea-level at low-tide before they were sand filled and turned into islands. However, according to the Convention, only naturally-formed land can be classified as islands3435. Some of the islands owned by China were reconstructed i.e. altered from their natural form, since they were below sea-level at low tide and at high tide, thereby violating the UNCLOS stipulations. The ‘islands’ owned by China are actually classified by the UNCLOS as rocks, low-tide elevations, or submerged banks, but not islands, thereby invalidating their claims based on the nine-dash-line maritime features36. After a thorough investigation, the Tribunal presumed that Scarborough has high tide highlights/rocks and is not able to support residence or financial life. According to the UNCLOS, high tide features/rocks are entitled to a 12-nautical mile territorial sea, and the 7 artificial islands built by China in the Spratly islands are therefore illegal under the UNCLOS37. On a third note, there is the interference with the Philippines Maritime Zones and Sovereign Rights. The abundance of fish in the SCS coupled with oil and gas resources makes the disputing countries claims more intense as the owner of a maritime feature with these untapped resources would automatically become economically relevant in the 29 The Philippines v. The People’s Republic of China Award on Jurisdiction, para. 121 See Sreenivasa, R.P, note 3, above, at page 274 31 PCA Case [2016] Nº 2013-19 32 ABS-CBN News. Arbitral Court’s Ruling on Philippines vs China (The Hague 2016) 33 UNCLOS Art.121 34 Art.13 35 Morton, K. China’s ambition in the South China Sea: Is a Legitimate Maritime Order Possible? (2016) 92(4) JIA 909-940 at 922 36 See Lunn, A and Lang, A, note 6, above, at page 11 37 Ankit, P. International Court Issues Unanimous Award in Philippines V, China Case on South China Sea (The Diplomat 2016) 30 5 East Asian region and even globally. It is evident why bilateral negotiations between China and the Philippines failed to bring about a resolution of their conflict leading to the dependence on international law and intervention from the UNCLOS who cover a widearray of issues relating to the world’s oceans, including the rights over the sea-bed as well as fishing, navigation and shipping as at 20 June 201638. The Tribunal decided that the Philippines had the privilege to work within its Exclusive Economic Zone without Chinese provocation39. The fourth basis deals with the unlawful actions of Chinese officials. China’s law enforcement teams violated the Philippines right to fish in the area, carry out seismic surveys, and oil exploration within their exclusive economic zone and continental shelf40. They use their vessels to hinder the Philippine nationals in ranges inside 200-nautical miles of the Philippine baselines in the SCS41, and illegally constructed artificial islands in areas used for geographical and environmental survey42. The Tribunal disagreed with China’s contradicting comprehension of its rights particularly as they are invalid under their authority. They likewise found that China abused the Philippines' sovereign rights in its restrictive financial zone, and overlooked the Philippines customary angling rights at Scarborough Shoal without thought43, hence, the ruling. The fifth basis for the Philippines Claim is the inability to ensure and protect the marine environment at Scarborough Shoal. China violated the Conventions instructions to preserve and protect fragile ecosystems, as research showed that their artificial construction of islands and excessive fishing had depleted the habitat, endangered more species, and greatly altered the ecosystem and natural habitat of the marine environment44. Chinese fishermen also carried out large scale fishing of not only fish, but other endangered mammals using extreme methods that were damaging to the marine environment45. The Tribunal found the Philippines complaint genuine, and China guilty of destroying the marine environment in Scarborough Shoal and also accused them of intentionally interfering with the natural order of the sea, causing harm for personal reasons/gain46. Their unlawful actions were destructive to the ecosystem breaching Articles 192 and 194(5) of the Convention. The final basis for the claims is intentionally aggravating the dispute between both countries as China began constructing a simulated island in the Philippines elite financial zone and decimating naturally occurring marine features for their own purposes47. The Tribunal found China’s actions to be intentional and unlawful. The use of military officials 38 UNCLOS, Art.1 See Lunn, A and Lang, A, note 6, above, at page 15 40 The Philippines v The People’s Republic of China. -Award on Jurisdiction, para. 405 41 PCA Case [2016] Nº 2013-19 42 See Lunn, A and Lang, A, note 6, above, at page 15-16 43 See Lunn, A and Lang, A, note 6, above, at page 16 44 See Lunn, A and Lang, A, note 6, above, at page 17 45 See Lunn, A and Lang, A, note 6, above, at page 17 46 See Sreenivasa, R.P, note 3, above, at page 276 47 The Philippines v The People’s Republic of China (The Hague Press Release 2016) 39 6 to frustrate the efforts of Philippine nationals fishing and carrying out activities on the South China Sea was unnecessary in settling disputes48. The Court Ruling With respect to the intervention organized by the Philippines against China, the UNCLOS under Annex 7 decided for the Philippines on a few perspectives putting a conclusion to China's authentic case in the locale4950. The arbitration covers China’s rights and claims to the SCS resources, inclusive of the sea privileges they are equipped for creating; and their general conduct and activities towards normal assets and part states in the locale51. China was against Philippines from the beginning, debunking their claims, and as such, refused to participate in the arbitration process or accept its results. However, this attitude did not disrupt the proceedings as Annex VII of the Convention states that “the absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” It also goes further to state that “in the event that a party does not participate in the proceedings, a tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law”52, and this was applicable in the absence of China at the proceeding. The Tribunal tested the accuracy of the Philippines’ claims, requested for additional evidence, and carried out independent research and investigations with the help of experts on its own to validate or disprove the claims put forward53, this enabled them to review the case from all angles, and make judgments. UNCLOS stipulated a 200-nautical mile zone of the coast for economic exclusivity but with regard to the SCS, China claims 90% of the area, raising further concerns as to the legitimacy of their historical sovereignty. A ruling in favor of the Philippines according to Glassier would not discredit the majority of Beijing's cases to arrive or sea zones in the SCS, rather, it would constrain the measure of water that China has sovereign rights over 5455. The Tribunal consisting of 5 judges at the PCA at the Hague ruled that China’s historical claims were invalid under international law, and that no maritime feature is recognized as an island under UNCLOS. They went further to criticize the behavior of Chinese ships in obstructing Philippine vessels on the SCS – classifying the act as unlawful56. Based on the Tribunal’s ruling on the historical evidence presented, they agreed that China may have previously used the islands in the SCS; however, there is no evidence proving that China forcefully took control over the resources in the SCS. 48 See Lunn, A and Lang, A, note 6, above, at page 19 See ABS-CBN News, note 32, above 50 See Holmes, O. and Phillips, T, note 8, above 51 See ABS-CBN News, note 32, above 52 See ABS-CBN News, note 32, above 53 See ABS-CBN News, note 32, above 54 Glaser, B. Seapower and Projection Forces in the South China Sea (Congressional Testimony, Center for Strategic and International Studies 2016) at page 1 55 See Holmes, O. and Phillips, T, note 8, above 56 See Ankit, P, note 38, above 49 7 The SCS arbitration on the Philippines-China issue concerned an application by the Philippines for decisions in regard to the SCS of which the Philippines looked for decisions on whether China's activities in the SCS have disregarded the Convention, by meddling with the practice of the Philippines' sovereign rights under the Convention or through development and angling exercises that have negatively affected the marine environment.57. By January 2013, the Philippines at the Arbitral Tribunal under UNCLOS filed a case against China. After years of deliberations, the PCA ruled and made decisions that were properly justified on the Philippine-China issue58. Territorial disputes, especially those with great economic value as is the case with the SCS is of enormous importance. China has repeatedly refused to dialogue with countries claiming features on the sea. The arbitration process would have offered China better opportunities to defend their claims and provide evidence backing their actions, however, they chose to disregard the proceedings, going as far as to harm the ecosystem, intensify their disputes with the Philippines, publishing derogatory statements about the PCA rulings etc. Each issue deliberated upon by the Tribunal was backed with decrees and thoroughly justified. They were able to clarify terms to avoid confusing the disputing parties, and by carrying out their independent investigations, they were able to make informed decisions relevant for resolving the disputes in favor of the Philippines. In conclusion, it is unclear whether China would uphold the Courts rulings with regards to their sovereignty claims and maritime rights and entitlements; however, going against them could set in motion a legal process that could hinder their ability to carry out economic activities in the SCS. Wemin identified that “China will neither accept nor participate in the South China Sea arbitration unilaterally initiated by the Philippines59. This longstanding position is fully supported by international law and subject to no change.” This comment gives an insight into the kind of actions China would take to stake their claim over the features of the South China Sea. This uncertainty is a cause for concern, and China repeatedly states that they would not accept the Tribunals award to the Philippines or their other rulings affecting their actions60. Most importantly, involving the UNCLOS in the dispute does not seem to have created room for future negotiations. China stands by its historical rights based on the nine-dash-lines, while the Philippines stands by the rulings given by the PCA in the hopes that China would finally agree to the terms set and not take further actions to violate the provisions and guidelines issued by the UNCLOS. Future relations between both countries on the SCS would determine if the dispute will be resolved, or continue to work against the China in light of increased economic development. 57 See ABS-CBN News, note 32, above PCA Case [2016] Nº 2013-19 59 See Ankit, P, note 38, above 60 Wemin, L, Ministry of Foreign Affairs, People’s Republic of China (Regular Press Conference 2012) 58 8 Bibliography Articles Jinming, L and Dexia, L ‘The Dotted Line on the Chinese Map of the South China Sea: A Note’, (2003) 34 (1) ODIL 287–295 Morton, K ‘China’s ambition in the South China Sea: is a legitimate maritime order possible?’ (2016) 92 (4) JIA 909–940 Sreenivasa, P ‘The South China Sea Arbitration (The Philippines v. 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