Foreign Relations & International Law

Tracking China’s Compliance with the South China Sea Arbitral Award

Julian Ku, Chris Mirasola
Monday, October 3, 2016, 2:39 PM

Since the arbitral tribunal formed pursuant to the UN Convention for the Law of the Sea (UNCLOS) handed China a stunning legal defeat in July, China has loudly proclaimed its intention to ignore the arbitral award. For most analysts of the region, it has been a working assumption that China has not and will not comply with any parts of the award.

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Since the arbitral tribunal formed pursuant to the UN Convention for the Law of the Sea (UNCLOS) handed China a stunning legal defeat in July, China has loudly proclaimed its intention to ignore the arbitral award. For most analysts of the region, it has been a working assumption that China has not and will not comply with any parts of the award. But China’s statements that it will ignore the award do not necessarily mean that it is currently in complete non-compliance or that it will never come into compliance in the future. China’s actions, as opposed to terse public statements, must be assessed as a measure of its compliance.

This chart offers a detailed analysis of the award’s requirements (also available below). Specifically, for each of the Philippines’ submissions, the chart summarizes the tribunal’s findings and offers an assessment of Chinese government statements and actions since the award’s issuance on July 12.

“Non-compliant” means that China has taken actions since July 12 that are in direct violation of a specific requirement of the award. “Uncertain” means that there are no reports that China has taken actions that clearly violate a particular part of the award. “Compliant” means that China has taken actions that indicate complete compliance with that portion of the award.

We hope this chart will serve as a resource for Lawfare readers who want to more clearly understand how China’s present and future actions interact with the tribunal’s award. We plan to update it if and when news requires a different assessment of China’s compliance.

To summarize our current assessment, we find that China is currently in clear violation of four of the tribunal’s rulings and fully compliant with one. It is uncertain whether China is in compliance with the rest of the tribunal’s rulings. Two of China’s violations of the award stem from activity related to its presence on an artificial island at Mischief Reef, which the arbitral tribunal found is an unlawful occupation and constitutes interference with Philippines’ rights to an Exclusive Economic Zone (EEZ) and continental shelf. Other clear examples of non-compliance include China’s continuing refusal to allow Filipino fishermen to return to their traditional fishing grounds around Scarborough Shoal and its broader interference with Filipino fishermen within the Philippines’ EEZ.

On the other side, we find that the only example of full compliance is that China agrees with the Philippines that disputes in the South China Sea should be resolved on the basis of international law, including UNCLOS.

Overall, we find that China is neither clearly in compliance nor clearly in violation with most of the tribunal’s award. Even the tribunal’s most well-known ruling—against China’s “Nine Dash Line” claim—has not been explicitly violated since the award’s issuance. In a post-award statement, China reiterated its claim to historic rights but did not specifically reject the tribunal’s restriction of such historic rights to traditional fishing rights inside the territorial seas of other countries. Of course, China has not embraced the award’s findings on the Nine Dash Line either, but our reading of the award allows China some room to both preserve the Nine Dash Line (in a much diminished form) while remaining in compliance with the award.

Similarly, much U.S. attention has been focused on the Chinese activities around Scarborough Shoal near the Philippines. But while the tribunal ordered China to allow Filipino fishermen to return there, it found that Scarborough Shoal was a “rock.” This means that China could claim sovereignty over Scarborough Shoal and enforce a 12 nautical mile territorial sea without violating the award. Constructing an artificial island might violate the award if, as is likely, such an island would deny Filipino fishermen access to their traditional fishing grounds.

We conclude by highlighting those actions which would signal that China is choosing open and complete defiance of the award. Here are three that would be particularly problematic and almost certainly raise tensions in the region:

1. Declaring straight baselines around maritime features in the Spratly Islands

In most cases, the territorial sea, EEZ, and continental shelf extend from a country’s coastline. There are two situations, however, where UNCLOS instead allows States to draw what are called straight baselines: (1) where a coastline is deeply indented or there are islands fringing the coast (e.g., Scandinavian fjords), and (2) around the outermost islands and drying reefs of an archipelagic State (e.g., a line around features that comprise the Philippines). In 1996 China declared the second type of straight baselines around the Paracel Islands, which Vietnam continues to claim after it lost control of the island group in 1974.

The international community would almost certainly see straight baselines around the Spratly Islands as illegitimate under UNCLOS. Indeed, the United States found that to be the case for China’s 1996 declaration around the Paracel Islands. Straight baselines around the Spratlys would implicate the arbitral tribunal’s ruling more specifically because such a declaration would likely require China to take a position on the legal characterization of many of the maritime features considered by the tribunal. This could change our analysis of China’s possible compliance with submissions 3, 4, 6, and 7.

2. Defining historic rights in the South China Sea as including resource or sovereign rights or other jurisdiction beyond artisanal fishing in the territorial sea

China has been careful to avoid defining the historic rights it claims in the South China Sea after the tribunal’s ruling. Actions that suggest China claims anything beyond traditional fishing rights in the territorial sea of an island (e.g., granting oil exploration contracts beyond its claimed EEZ) would make China openly non-compliant with the tribunal’s rulings on submissions one and two.

3. Building an artificial island at Scarborough Shoal

There has been considerable speculation for at least the past six months concerning whether China will start building an artificial island at Scarborough Shoal. Reports suggest that President Obama specifically warned President Xi that construction at Scarborough Shoal would lead to serious consequences.

Regarding the tribunal’s ruling, construction of the same kind of artificial island at Scarborough that China has constructed elsewhere would reinforce China’s current non-compliance with submission 10 (preventing Philippine fishermen from pursuing traditional fishing) and part of submission 12 (environmental obligations regarding artificial island construction). It would also most likely make China non-compliant with submission 11 (China’s general obligation to protect the marine environment).

China’s publicly negative reaction to the arbitral award means that China is unlikely to openly admit its compliance. But actions are at least as important as words in this case. China has not yet clearly violated key aspects of the arbitral award. This suggests that there is still room for a negotiated solution on some (though perhaps not all) of these thorny issues.

Julian Ku is the Maurice A. Deane Distinguished Professor of Constitutional Law at Hofstra University School of Law. He is a co-founder of Opinio Juris, the leading blog on international law.
Chris Mirasola is a Climenko Fellow and lecturer on law at Harvard Law School. Previously, he was an attorney-advisor at the Department of Defense Office of General Counsel.

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