5 Takeaways: A Closer Look at the Historic South China Sea Arbitration Award
We’re hardly 12 hours out from the release of today’s historic award by a five-judge tribunal in The Hague on maritime entitlements in the South China Sea. The Tribunal, among other things, ruled China’s nine-dash line claim invalid and ruled in the Philippines’ favor on almost all counts. You can read my summary and early analysis of the award in a previous article here atThe Diplomat. While I’m far from finished with the 500-page document, I do want to highlight some notable takeaways from my early reading of the award. (Readers may have caught some of these impressions on Twitter already, but it’s always good to avail of the longer form permitted here.)
Taiwan’s island isn’t an island. One of the big bang outcomes of the arbitration is the ruling on Itu Aba, the largest feature in the Spratlys occupied by Taiwan. Itu Aba had been a complicating factor in this whole dispute. While the case involved a filing by the Philippines against China, Taiwan possessed a feature at the center of the Spratly imbroglio that could have potentially been ruled an island under Article 121.3 of the United Nations Convention on the Law of the Sea, generating a full 200 nautical mile exclusive economic zone (EEZ). This didn’t happen and Itu Aba is just a rock, like so many of the other features involved in the award.
My colleague Shannon has written about why the result is so deeply disappointing for the Taiwanese, but there’s a broader fallout that’s worth considering too. If Itu Aba isn’t an island on the account that it doesn’t support a “stable community of people,” it raises questions about other EEZ-generated possessions, like Wake and Midway Islands for the United States and Japan’s Okinotori claim (which I’ve discussed recently). The U.S. hasn’t ratified UNCLOS while Japan has. Meanwhile, the results of this award are binding on China and the Philippines, but will serve as a notable precedent in potential other cases of generously understood “islands.”
Let’s talk about Mischief Reef. In its ruling, the Tribunal decided that Mischief Reef, along with Second Thomas Shoal, is part of the Philippines’ continental shelf and falls within Manila’s EEZ. (Paragraph 647 outlines this in more detail.) As a low-tide elevation, it receives no special consideration for a territorial sea. As some readers may be aware, Mischief Reef also happens to be the site of one of China’s artificial islands. In paragraph 1177, the Tribunal remarkably notes that “China has effectively created a fait accompli” at Mischief Reef.
The Tribunal’s observation is correct. Mischief Reef now contains an illegally constructed Chinese dual-use facility on the Philippines continental shelf that a) cannot be reverted to its pre-artificial island state, and b) is highly unlikely to change hands. If Manila and Beijing do enter bilateral talks as per the Duterte government’s recent signals, this fact will loom as an awkward elephant in the room.
Finally, way back in October 2015, after the first U.S. freedom of navigation operation (FONOP) near Subi Reef,I made the incorrect prediction that Washington would opt to conduct a FONOP near Mischief Reef, which was enticing as it likely had far fewer constraints, permitting a high seas-assertion FONOP instead of an innocent passage operation like the first three we’ve seen. The ITLOS award effectively confirms what I’d suggested about the feature, but it also makes it an acute flash point given U.S. commitments to the Philippines under the Mutual Defense Treaty. Read more…