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