Foreign Relations & International Law

Tracking China’s Compliance with the South China Sea Arbitral Award: Traditional Fishing Rights Inside the Lagoon at Scarborough Shoal

Julian Ku, Chris Mirasola
Wednesday, November 2, 2016, 12:24 PM

Earlier this week we reassessed China’s compliance with 15 rulings contained in the July 12 U.N. Convention on the Law of the Sea arbitral award.

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Earlier this week we reassessed China’s compliance with 15 rulings contained in the July 12 U.N. Convention on the Law of the Sea arbitral award. As of this past weekend, Philippine government statements and testimonials from fishermen indicated that Manila had recovered the ability to fish at Scarborough Shoal. We argued that, based on these developments, China is now compliant with the arbitral tribunal’s decision that the Philippines is entitled to “traditional fishing at Scarborough Shoal.”

Reports over the past few days, however, indicate that Philippines Defense Secretary Delfin Lorenzana was incorrect when he stated that “there are no longer Chinese ships, Coastguard or navy, in the Scarborough area.” More specifically, analysts are disputing whether Filipino fishermen have regained access to the lagoon inside Scarborough Shoal.

At least two Filipino news outlets have used language suggesting that fishermen have access to the lagoon. A report from GMA stated, “News of Filipinos resuming fishing activities in the lagoon” (emphasis added). ABS-CBN News found that “[a] group of Filipino fishermen successfully returned from a fishing trip in the disputed Scarborough Shoal on Tuesday” (emphasis added). Satellite imagery from the Asia Maritime Transparency Initiative, however, cast doubt on this account. As of October 29th, satellites showed a China Coast Guard vessel at the mouth of the lagoon and had not detected any Filipino fishing activities within Scarborough Shoal. AMTI notes that this situation, wherein Filipino fishermen are able to approach but not enter the lagoon at Scarborough, has been a recurring one since China took control of the shoal in 2012.

If these images do, in fact, mean that Filipino fishermen do not have access to the lagoon, does this change our assessment that China is compliant with the tribunal’s decision regarding Submission 10? In short, no. This is because (1) the tribunal’s decision does not require that compliance include access to the lagoon and (2) the tribunal gave both China and the Philippines broad authority to define the scope of traditional fishing rights.

First, Submission 10 found that: “Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities and DECLARES that China has, through the operation of its official vessels at Scarborough Shoal from May 2012 onwards, unlawfully prevented fishermen from the Philippines from engaging in traditional fishing at Scarborough Shoal,” PCA decision ¶1203(b)(11).

On its own terms, this judgment does not indicate whether the Philippines is entitled to traditional fishing rights around Scarborough Shoal, within the lagoon, or both. Other portions of the tribunal’s analysis are no more availing. The tribunal, for example, was “satisfied that the complete prevention by China of fishing by Filipinos at Scarborough Shoal over significant periods of time after May 2012 is not compatible with the respect due under international law to the traditional fishing rights of Filipino fishermen” (¶812, emphasis added). In characterizing the Philippines’ evidence establishing a traditional fisheries right, the tribunal found that “at least some of the fishing carried out at Scarborough Shoal has been of a traditional, artisanal nature” (¶807, emphasis added).

Second, the tribunal found that a coastal State may “assess the scope of traditional fishing to determine, in good faith, the threshold of scale and technological development beyond which it would no longer accept that fishing by foreign nationals is traditional in nature” (¶809). In effect, the tribunal is arguing that concerned parties in each individual case, subject to some general limiting principles discussed elsewhere in the decision, are largely entitled to define the meaning of “traditional fishing” rights. Looking to Scarborough Shoal, China and the Philippines, both of which are entitled to traditional fishing rights in this area, would be allowed to determine whether traditional fishing must necessarily include rights to fish within the lagoon.

Statements from Philippine government officials and Filipino fishermen suggest that the current level of access to Scarborough Shoal accords with their understanding of traditional fishing rights at this location. National Security Adviser Hermogenes Esperon, for example, said that while there is no agreement, “our fishermen are no longer being accosted, no longer being forced out, so we can say things are now friendly.” Some fishermen reflected a similar sentiment, one of whom told reporters that “We can now recover our losses . . . . We are happy and we hope that this will continue.”

There is another reason to think that the tribunal’s award does not extend the Philippines’ traditional fishing rights to inside the lagoon. Under the tribunal’s award, Scarborough Shoal is a high-tide feature that constitutes a “rock” entitled to a territorial sea, but no exclusive economic zone (¶554). As a rock entitled to a territorial sea, a state sovereign over Scarborough (China or the Philippines) is allowed to set a baseline for determining its territorial sea. All waters to the “landward side” of such a baseline are “internal waters” under UNCLOS art. 8. Indeed, the UN Division on Ocean and Law of the Sea Affairs has published a study suggesting lagoons are typically treated as internal waters. If correct, the lagoon at Scarborough Shoal may qualify as “internal waters” over which a state has no duty to extend traditional fishing rights. The tribunal suggested as much when it found that traditional fishing rights are preserved only in archipelagic waters and the territorial sea (¶804(a, c)). Put another way, if the lagoon at Scarborough Shoal constitutes “internal waters,” then the tribunal’s award probably could not require China to allow Filipino fishermen inside the lagoon. As the tribunal reaffirmed, however, this does not mean that UNCLOS precludes States from agreeing to bilateral fishing agreements in other waters, e.g., internal waters or the exclusive economic zone (¶804(b)).

In sum, we find that while the tribunal certainly was firm in reaffirming Manila’s right to traditional fishing at Scarborough Shoal, the terms of its decision provide China and the Philippines considerable room to negotiate what this right should mean in practice.

Nevertheless, we do not mean to argue that this more modest understanding of historic fishing rights is the most that the Philippines could achieve at Scarborough Shoal. There is an altogether separate policy question of whether Manila would gain more by asserting that these traditional fishing rights should include waters within the lagoon. This more expansive understanding would have a number of benefits, most obviously including greater freedom of movement and access for Philippine fishermen. And the Philippines would have a historic basis for advancing such a claim, as before 2012 it was common for its fishermen to access the lagoon.

Looking to the medium term, this more expansive conception of traditional fishing rights might also benefit the Philippines by complicating the legal basis of potential island-building activities at Scarborough Shoal. If Manila maintains that the lagoon represents traditional fishing grounds, it would presumably not be permissible for China, or any other State with sovereign claims to Scarborough Shoal, to diminish that right by turning the lagoon into an artificial island. Given that the tribunal did not take a stand on conflicting sovereign claims, this would present yet another legal obstacle to potential Chinese island-building at Scarborough Shoal.

As we stated earlier in this week, nothing about this de facto, informal, and nonbinding agreement between China and the Philippines is irreversible. Further developments may reveal that China has indeed entirely repudiated Philippine traditional fishing rights, both inside and outside of the lagoon. For the time being, however, we should remain mindful of the considerable room for negotiation, compromise, and capitulation allowed by portions of the arbitral decision.

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.
Christopher Mirasola is a JD/MPP candidate at Harvard Law School and the Kennedy School of Government, where he studies America's strategic posture in the Asia-Pacific. Prior to graduate school he worked in mainland China for over two years, much of that time focused on the Chinese legal system. Chris is currently an Executive Editor of the Harvard International Law Journal and has held a legal internship at the Naval War College and Department of Defense Office of General Counsel (International Affairs).

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