Universalizing the Law of the Sea in the South China SeaDispute

Maximo Paulino T. Sison III

University of the Philippines, College of Law, Quezon City, Philippines

ARTICLE HISTORYReceived 22 August 2017Accepted 26 September 2017

ABSTRACTThis article argues that a resolution of the maritime disputes in theSouth China Sea must be based upon a universalist frameworkwhere the maritime interests of the world are upheld. The articlediscusses the universalist framework of the 1982 United NationsConvention on the Law of the Sea (UNCLOS) and the universalistapproach taken by the Tribunal on 12 July 2016 in the SouthChina Sea Arbitration regarding the extinguishment of a state’s“exceptionalist” maritime claims and the adoption of strict criteriafor the characterization of features at sea.

KEYWORDSexclusive economic zone;Nine-Dash Line; South ChinaSea; United NationsConvention on the Law ofthe Sea; Universalism

Background to the South China Sea Arbitration

The South China Sea dispute is one of the most complex territorial and maritime disputes inthe world today. China (including Taiwan), Vietnam, the Philippines, Malaysia, Indonesia,and Brunei have conflicting claims in the South China Sea within the context of ageopolitical rivalry between the United States and an emergent China. The importance ofthis dispute cannot be overstated because it impacts a region where a quarter of internationaltrade takes place1 and where more than half of the world’s oil tankers and merchant shipspass annually.2

The South China Sea dispute consists of (1) territorial or sovereignty disputes that arebased on conflicting claims to land features and are generally governed by customary inter-national law; and (2) maritime disputes that are based on conflicting claims over maritimezones and that are governed by the 1982 United Nations Convention on the Law of the Sea(UNCLOS)3 and other related international agreements.4

All the claimant states in the South China Sea dispute are parties to UNCLOS, which“establishes a comprehensive framework for the regulation of all ocean space.”5 UNCLOS

CONTACT Maximo Paulino T. Sison III mowiesison@gmail.com Office of the General Counsel, PSE Tower, 5thAvenue corner 28th Street, Bonifacio Global City, Taguig City 1634, Philippines.Color versions of one or more of the figures in the article can be found online at www.tandfonline.com/uodl.I thank Senior Associate Justice Antonio T. Carpio of the Philippine Supreme Court for his support in my studies in the law ofthe sea and for being a continuing inspiration as an untiring advocate for the rule of law in the oceans and seas. I also thankDr. Catherine Turner of Durham University for her invaluable comments on the draft of this paper. Finally, I thank theChevening Program of the UK Foreign & Commonwealth Office for its generous support during my stay in the UnitedKingdom. All errors are mine alone.© 2018 Taylor & Francis Group, LLC

OCEAN DEVELOPMENT & INTERNATIONAL LAW2018, VOL. 49, NO. 2, 157–175https://doi.org/10.1080/00908320.2018.1442181

has been famously described as the “constitution for the oceans,”6 with 168 state parties rep-resenting 87 percent of the membership of the United Nations.

The Convention provides for maritime entitlements (i.e., territorial sea, exclusive eco-nomic zone [EEZ], and continental shelf) for coastal states and common maritime spaces(i.e., the high seas and the area) for the benefit of all. UNCLOS involved a “package deal”that obliged states to accept the treaty as a whole, with few permissible reservations. Part ofthis package deal was the acceptance of the EEZ, which gives coastal states sovereign rightsto explore and exploit, conserve, and manage the living and nonliving resources of the mari-time space extending 200 nautical miles (nm) from their coastlines.

UNCLOS also defines the characteristics of features that may or may not generate thesemaritime entitlements. Among these features are (1) low-tide elevations, which areconsidered part of the seabed and hence do not generate any maritime entitlement,7 and (2)high-tide features (islands), which may generate the complete set of maritime entitlementsor those considered to be rocks that are entitled to, at most, a 12-nm territorial sea.8

In 1948, a map entitled “Map Showing the Location of the Various Islands in the SouthSea” was published by the Kuomintang government and showed a broken U-shaped linecovering almost the entire South China Sea.9 This is considered the cartographic progenitorof China’s so-called “Nine-Dash Line” claim in the South China Sea. In 2009, China declaredthe Nine-Dash Line to the international community when it protested Vietnam and Malay-sia’s joint submission to the UN Commission on the Limits of the Continental Shelf.10 Themap depicted nine segments that closely follow the coasts of the Philippines, Brunei, Malay-sia, and Vietnam.

China has not clarified the nature or scope of the Nine-Dash Line, including its geo-graphic coordinates, but has indicated that it has “indisputable sovereignty over theislands in the South China Sea and the adjacent waters, [including] sovereign rightsand jurisdiction over the relevant waters as well as the seabed and subsoil thereof.”11

China has repeatedly claimed that its Nine-Dash Line has been “formed over a longcourse of history” and is “solidly grounded in international law.”12 To reinforce theNine-Dash Line, China contends that all the features in the South China Sea overwhich it claims sovereignty generate the full suite of maritime entitlements, includingan EEZ and continental shelf.13

The Nine-Dash Line overlaps with the entitlements of all the neighboring coastal statescovering 80 percent of the Philippines’ EEZ, 80 percent of Malaysia’s EEZ, 50 percent ofVietnam’s EEZ, 90 percent of Brunei’s total EEZ, and 30 percent of Indonesia’s EEZ in theSouth China Sea.14 China’s Nine-Dash Line encompasses “about 85.7 percent … equivalentto 3 million square kilometers of the 3.5 million square kilometers total surface area of theSouth China Sea.”15 This is shown in Figure 1.

On 22 January 2013, the Philippines brought a case against China under Annex VII ofUNCLOS, claiming that (1) China is not entitled to exercise “historic rights” over the areaswithin its Nine-Dash Line; (2) the various features in the South China Sea relied on by Chinato assert its claims are not islands that are entitled to an EEZ and continental shelf; and (3)China unlawfully interfered with the Philippines’ sovereign rights under UNCLOS and otherrules of international law.16 As noted, China’s Nine-Dash Line overlaps with 80 percent ofthe Philippines EEZ in the South China Sea, including areas important for energy securitysuch as the Reed Bank and part of the Malampaya gas field.17

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On 12 July 2016, the Tribunal rendered its Award18 (“the Award”), which accepted almostall of the Philippines’ submissions. The Award purports to resolve the maritime dispute inthe South China Sea while explicitly declaring that it has no impact on the territorial disputesover the land features in the area.19 The most significant ruling of the Award is the invalida-tion of China’s Nine-Dash Line as being incompatible with UNCLOS.20

While the Award is binding only on the Philippines and China,21 it is a statement of theinternational law applicable in the South China Sea. The Award not only resolves the disputebetween the parties, but it also clarifies the interpretation and application of the UNCLOS, aswell as other related norms of the law of the sea. For the other claimants in the South ChinaSea, the Award sets out important guidelines or principles for them in resolving their claimsin the South China Sea.

Annex VII, Article 11 of UNCLOS provides that “the award shall be final and withoutappeal … it shall be complied with by the parties to the dispute.”22 To date, not only hasChina expressly rejected the Award,23 but it has continued acting on its expansive claims,including the construction of facilities among its artificial islands in the South China Sea.24

The post-arbitration situation shows the disconnect between the articulation of theapplicable international law by the Tribunal and state practice on the ground. It also teststhe strength of UNCLOS institutions, and ultimately UNCLOS itself, for which the continu-ing validity relies on the coordinated actions of compliance by states. On a higher level ofgenerality, the South China Sea dispute raises questions about the nature of internationallaw, especially the link between law’s validity and efficacy.

Figure 1. Effect of China’s Nine-Dash Line on the Philippines’ maritime entitlements under UNCLOS. Thedark blue shaded area is what will remain of the Philippines’ maritime entitlements in the South ChinaSea under China’s Nine-Dash Line Claim. From Antonio Carpio, The South China Sea Dispute: Philippine Sov-ereign Rights and Jurisdiction in the West Philippine Sea (2017), at 30.

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This article argues that the implementation of the UNCLOS requires a universalistapproach where fundamental norms of the law of the sea are preserved and protected. Thelaw of the sea is premised on the reality that the “ocean is one unit in a physical sense”25—an indivisible public good that necessitates international cooperation.26 Whatever its mani-festations in legal form, a sustainable universal law of the sea must be concerned not onlywith states’ individual maritime entitlements, but also with protecting the global oceancommons. Protecting the global commons is fundamental because it underpins the freedomsof navigation and overflight and the conduct of international maritime trade.

The next section discusses the universalist framework of the UNCLOS vis-�a-vis China’sbilateral approach in the South China Sea dispute with the Philippines. The third sectiondiscusses the universalist approach in the Award evident in two of the key findings of theTribunal: (1) the extinguishment of a state’s exceptionalist claim over maritime areas to theextent that it is incompatible with UNCLOS, and (2) the objective criteria utilized for a “fullyentitled island.” The fourth section concludes by discussing China’s possible strategy tomaintain its Nine-Dash Line under Article 311(3) of UNCLOS and some issues affecting theresolvability of the South China Sea dispute.

UNCLOS’s universalism and China’s bilateralism

Starting in April 2012, the Philippines and China were locked in a standoff at ScarboroughShoal after Philippine authorities intercepted and arrested Chinese fishermen who werefound to be “harvesting … threatened or endangered species” such as corals, sea turtles,sharks, and giant clams around the waters of the shoal.27 Scarborough Shoal (Chinese name:Huangyan Dao; Philippine name: Bajo de Masinloc or Panatag) is a coral reef locatedapproximately 118 nm from the Philippines Luzon Island and approximately 460 nm fromChina’s Hainan Island.

The standoff lasted about two months, as the countries could not agree on the terms of amutual withdrawal. The standoff ended in July when the Philippines withdrew its vesselsunder the assumption that it had reached an agreement with China on a mutual withdrawalof vessels. The Philippines had expected the restoration of the status quo ante, which wasPhilippine control over Scarborough Shoal.28 China, however, denied that there was amutual withdrawal agreement. China established de facto control over the ScarboroughShoal through occupation by its vessels and by erecting a barrier across the lagoon of theshoal.29

The 2012 Scarborough standoff is important for two reasons. First, the standoff was a trig-ger event that led the Philippines to bring the arbitration case against China.30 ThePhilippines realized that a diplomatic solution would no longer work in its favor. AsPhilippine Foreign Secretary Albert del Rosario declared to the Tribunal during the hearings,the Scarborough standoff “and other acts by China caused the Philippines to conclude thatcontinued diplomatic efforts, whether bilateral or multilateral, would be futile, and that theonly way to resolve our maritime disputes was to commence the present arbitration.”31 Oneof the main proponents of the case, Justice Antonio Carpio of the Philippine Supreme Court,explained that “in responding to Chinese occupation of Scarborough Shoal … the … onlyviable option was to bring the matter to an international tribunal for arbitration, where theplaying field would be level and military power would not count, but only the rule of law

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would govern.”32 The Philippine government thus made a policy choice that a binding deci-sion would be needed to set the parameters for future diplomacy with China.

Second, the Scarborough standoff demonstrates China’s preferred approach of bilateralnegotiation and consultation in resolving the South China Sea disputes. From China’s per-spective, Scarborough Shoal is an important strategic location that may be used to enforcethe eastern region of its Nine-Dash Line.33 During the standoff negotiations, China warnedthe Philippines not to “internationalize” the dispute by (1) referring it to international arbi-tration; (2) seeking the help of the Association of Southeast Asian Nations (ASEAN); or (3)seeking the help of the United States, which has an alliance with the Philippines under the1951 Mutual Defense Treaty.34 In a position paper published by the Chinese Ministry of For-eign Affairs on 7 December 2014, China stated that “with regard to disputes concerning ter-ritorial sovereignty and maritime rights, [it] has always maintained that they should bepeacefully resolved through negotiations between the countries directly concerned.”35 Chi-nese Foreign Minister Wang Yi stated during a visit to the Philippines on 25 July 2017 thatSoutheast Asian nations should reject the interference of “nonregional forces” in the SouthChina Sea, an apparent reference to the United States.36

China’s preferred approach of bilateral negotiation and consultation with the “countriesdirectly concerned,” namely, the coastal states of the South China Sea, reflects its preferredsolution to the South China Sea dispute, as it is apparently the best way for China to legiti-mize the Nine-Dash Line. The view appears to be that the Nine-Dash Line is more likely tobe legally valid if it is recognized by the states that have direct interest in the South ChinaSea dispute, given that it is their maritime entitlements that may be shared or conceded.

It is interesting to note, however, how this bilateral view interacts with the UNCLOS. ThePreamble of UNCLOS acknowledges that “the problems of ocean space are closely interre-lated and need to be considered as a whole.”37 It further states that UNCLOS is designed to“establish … a legal order for the seas and oceans” and “to settle … all issues relating to thelaw of the sea.”38 This reflects the nature of the oceans and seas as “one single unit and …essentially characterized by the continuity of maritime spaces.”39 Such characteristics of theoceans and seas are critical since regulation is complex, because activities in one maritimespace can and do affect another more readily than on land territory.40 This also means that,to a certain extent, the law of the sea must necessarily adopt a holistic framework, given theexternalities involved in the regulation of the oceans and seas.

The Preamble of UNCLOS, which contextualizes the interpretation and application of theentire Convention,41 shows a clear intent to settle disputes in a holistic or universal manner.In other words, any form of settlement of a dispute should fit within the entire network offundamental and interacting norms of the law of the sea, including norms such as the “Com-mon Heritage of Mankind” and the freedoms of navigation and overflight. These examplesare part of a broader norm in the law of the sea, which is the protection of the global com-mons in the oceans and seas. The interest in upholding this norm is shared not only by thecoastal states of the South China Sea, but by all states.

China’s approach of bilateral negotiation and consultation therefore appears to be at vari-ance with UNCLOS’s universalism. The implication of this approach is that a solution to theSouth China Sea dispute may eventually be forged through separate bilateral dealings byChina with the coastal states in the region. Thus, it proceeds through a “bottom-up” methodby building on the inter se norms arising from China’s individual deals with the coastal statesin the South China Sea. In this way, international order is supposedly established through a

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“containment of disorder”42 by reaching amicable deals with states whose maritime zones(and possibly territorial claims) are fully or partially included in the areas covered by China’sNine-Dash Line.

In contrast, the framework of UNCLOS requires universality. It is “top-down” because itrequires that any solution to a maritime dispute conform to preexisting and overarchingnorms concerning ocean space. If each of the coastal states in the South China Sea generatesa 200-nm EEZ using the mainland coasts, there would be a significant elongated area in themiddle of the region that would constitute high seas. Under UNCLOS, this area would bepart of the global commons because it is, among other things, subject to freedom of naviga-tion and overflight. In this context, all states are directly concerned in the South China Seadispute because they have legal rights and obligations that are at stake. Such fundamentalnorms of the law of the sea are at risk of being foregone if a purely bilateral approach is pur-sued to the South China Sea dispute.

The universalist approach of the Award

This section focuses on two legal principles articulated by the 2016 Award that reinforce theuniversalist framework of the UNCLOS. These legal principles concern (1) the extinguish-ment of a state’s exceptionalist claim over maritime areas to the extent that it is incompatiblewith the UNCLOS and (2) the objective criteria for the characterization of a “fully entitledisland” under Article 121 of the UNCLOS. Together, these principles clarify a state’s individ-ual maritime entitlement and, at the same time, uphold the norm of protecting the globalcommons by limiting a state’s ability to make expansive maritime claims that encroachupon common maritime spaces.

Preclusion of exceptionalist maritime claims

The preclusion of a state’s exceptionalist maritime claim follows from the Tribunal’s reason-ing on the invalidity of China’s Nine-Dash Line. In the Award, the Tribunal observed thatwhile China has repeatedly invoked “rights ‘formed in the long historical course’”43 withrespect to the Nine-Dash Line, it had never “clarified its understanding of the meaning” ofsuch claim.44 It is clear, however, that the source of such claim is not UNCLOS because theinvocation of history departs from the Convention’s system of maritime entitlements. Chinahad undertaken steps that appeared to clarify its understanding of its Nine-Dash Line. First,China had made a claim to petroleum resources beyond 200 nm from any feature in theSouth China Sea evidenced by a “notice of open blocks for petroleum exploration”45 issuedby the China National Offshore Oil Corporation, a state-owned company of China. Therewere also several instances where China objected to the Philippines’ award of petroleumblocks near Palawan Island because such blocks are allegedly located within the Nine-DashLine.46 Second, China appeared to claim fishing rights in the South China Sea evidenced byChina’s regulation entitled “Summer Ban on Marine Fishing in the South China Sea Mari-time Space” issued on May 2012.47 Third, on 27 October 2015, China’s Vice Foreign Minis-ter Zhang Yesui declared that “the Chinese side respects and safeguards the freedom ofnavigation and over-flight in the South China Sea to which all countries are entitled underinternational law.”48 The Tribunal noted that the same commitment to freedom of

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navigation and overflight in the South China Sea had been repeated in other statements ofChinese officials.49

Considering the three instances of China’s conduct just described, the Tribunal concludedthat China’s Nine-Dash Line was a claim to the living (e.g., fisheries) and nonliving resources(e.g., petroleum) within the maritime space it encompasses.50 The Nine-Dash Line was,therefore, not the same as a claim to territorial or internal waters because China maintainedits commitment to freedom of navigation and overflight in the South China Sea.51 Pursuantto the UNCLOS, a state enjoys sovereignty over its territorial or internal waters in almostthe same way as land territory, subject to the limited right innocent passage in the territorialsea.52 Thus, other states do not have freedom of navigation and overflight in another state’sterritorial or internal waters. China had consistently anchored its Nine-Dash Line on history,on which the Tribunal ruled that the Nine-Dash Line was not a claim involving “historictitle” (i.e., “historic sovereignty to land or maritime areas”53) but rather involved “historicrights,” which may “include more limited rights … that fall short of a claim ofsovereignty.”54

If the Nine-Dash Line was a claim to the living and nonliving resources in the SouthChina Sea, then it is similar to a state’s rights over its EEZ and continental shelf. On this, theTribunal ruled that “as a matter of text alone … [UNCLOS] is clear in according sovereignrights to the living and non-living resources of the exclusive economic zone [and continentalshelf] to the coastal State alone.”55 It upheld the “norm of exclusivity” under UNCLOS,which gives states exclusive rights over their maritime entitlements. The Tribunal stated that“the notion of sovereign rights over living and non-living resources is generally incompatiblewith another State having historic rights to the same resources, in particular if such historicrights are considered exclusive, as China’s claim to historic rights appears to be.”56 As theEEZ is a relatively novel entitlement established by UNCLOS, the Tribunal noted China’sposition during the UNCLOS negotiations “as one of the foremost defenders of the rights ofdeveloping States and was resolutely opposed to any suggestion that the coastal States couldbe obliged to share the resources of the exclusive economic zone with other powers that hadhistorically fished in those waters.”57

The Tribunal explained the universalist framework of UNCLOS as being intended to“provide a complete basis for rights and duties of the State Parties.”58 It reiterated the con-cept of a “package deal”59 and cited a memorandum of the President of the Conference thatalong with the goal of the UNCLOS to create “a completely integrated legal order for the useof the oceans,” there is also a need to “preserve intact, and protect, the efficacy and durabilityof the body of law” established in UNCLOS.60 In effect, the UNCLOS supersedes “any his-toric rights that a State may once have had in the areas that now form part of the exclusiveeconomic zone and continental shelf of another State.”61 In any event, the Tribunal foundno evidence that China had acquired any historic rights in the South China Sea. It said that“for much of history,” China undertook navigation, trade, and fishing in the South ChinaSea that represented high seas freedoms.62 The Award states that “the exercise of freedomspermitted under international law cannot give rise to a historic right; it involves nothingthat would call for the acquiescence of other States and can only represent the use of whatinternational law already freely permits.”63

Respecting the Nine-Dash Line, the Tribunal accepted the Philippine submissionsand ruled that a Chinese claim of historic rights cannot exceed the “geographic andsubstantive limits”64 of the maritime entitlements of the UNCLOS. By holding that the

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establishment of the EEZ and continental shelf has the effect of extinguishing historicrights, the Award has lessened the opportunities for states to make expansive orexceptionalist maritime claims on the basis of history. This preserves the integrity ofUNCLOS system of maritime entitlements and follows the UNCLOS universalistframework. The overall effect of the Tribunal’s invalidation of China’s Nine-Dash Lineis to preserve the integrity of states’ individual maritime entitlements and the globalcommons in the South China Sea.

Criteria for fully entitled Islands

The second major outcome of the Award is the setting forth of objective criteria for the char-acterization of a fully entitled island under Article 121 of UNCLOS. The South China Seadispute pre-UNCLOS was perceived as primarily one contesting territorial or sovereigntyclaims over the land features in the region.65 The importance of the territorial sovereigntydispute was reflected in China’s Position Paper on 7 December 2014, where it argued that“the subject-matter of the Philippines’ claims is in essence one of territorial sovereignty overseveral maritime features in the South China Sea, which is beyond the scope of theConvention.”66 The core argument was that “the question of whether the Philippines canindeed enjoy a 200 nm EEZ and continental shelf in the South China Sea depends, not least,on the question of territorial sovereignty of other States, including China, over the islands,rocks and low-tide elevations of the Spratly Islands and the ensuing maritime entitlementsof those States.”67 If this were the situation, then the Tribunal was without jurisdiction as itwas limited to disputes “concerning the interpretation and application of [UNCLOS]” andother related international agreements,68 which did not include territorial disputes.

The Philippines requested from the Tribunal a declaration on whether certain features inthe South China Sea were low-tide elevations, rocks, or fully entitled islands.69 The Philip-pines claimed that this was within the Tribunal’s jurisdiction because it required the “inter-pretation or application” of the provisions under UNCLOS defining the status of thesefeatures. It was argued, contrary to China’s position, that this does not involve a territorialdispute because “the fact that state A or state B or state C or state Z has sovereignty over aparticular feature is entirely irrelevant to the question of its characterisation.”70 In the 2015Award on Jurisdiction and Admissibility, the Tribunal agreed with the Philippines that noneof its submissions “require[d] an implicit determination of sovereignty.”71 By further delin-eating the boundaries between land and sea, the Award contributes to the greater operabilityof the Convention because it gives UNCLOS tribunals the competence to determine thescope of maritime jurisdiction.

The 2016 Award turned to the determination of the legal status of the various features. A“low-tide elevation” is defined in UNCLOS as “a naturally formed area of land … sur-rounded by and above water at low tide but submerged at high tide.”72 It is not land territorybecause it is considered part of the submerged seabed, that is, part of a maritime zone. Asheld by the International Court of Justice in the 2012 Nicaragua v. Columbia Case, “low-tideelevations cannot be appropriated, although ‘a coastal State has sovereignty over low-tideelevations which are situated within its territorial sea, since it has sovereignty over the terri-torial sea itself.’”73

Under international law, a state can only appropriate land territory,74 with land ter-ritory being territory that is above water at high tide, such as islands and rocks. The

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regime of islands provision, Article 121 of UNCLOS, defines an “island” as “a naturallyformed area of land, surrounded by water, which is above water at high tide.” In theterminology of the Tribunal, a “fully entitled island” is one that possesses the full suiteof maritime zones, that is, a territorial sea, a contiguous zone, an EEZ, and a continen-tal shelf.75 However, there are islands or high-tide features “which cannot sustainhuman habitation or economic life of their own” that are called “rocks.”76 Under Arti-cle 121(3), rocks have, at most, a 12-nm territorial sea and “shall have no exclusiveeconomic zone or continental shelf.”

The Tribunal set objective criteria for the characterization of a fully entitled islandbased on its understanding of the text and history of the UNCLOS. The keyconsideration was on the wording in Article 121 that a fully entitled island has to havethe capacity to sustain human habitation or economic life of its own. Bernard Oxman,the U.S. Representative to the Third UN Law of the Sea Conference and counsel to thePhilippines, notes that the Award “is the first decision by an international tribunal inwhich issues posed by paragraph 3 of Article 121 [i.e., the provision on “rocks”] areanalyzed in depth.”77

After an extensive analysis of the wording and context of Article 121, one criterion set bythe Tribunal is that “human habitation” or “economic life” is to be based on the natural con-dition of the feature itself, without external or artificial modifications. “Human habitation”is described as where the inhabitants are “the natural population of the feature, for whosebenefit the resources of the exclusive economic zone were seen to merit protection.”78 Byexamining the history of the UNCLOS, the Tribunal noted that the purpose of the creationof the EEZ was “to preserve the resources of those waters for the benefit of the population ofthe coastal State.”79 Thus, a feature would not be entitled to an EEZ if it had no permanentlocal population that is the beneficiary of the resources of such expanded maritime space.Thus, in the case of military occupation of features in the South China Sea,80 this alonewould not constitute “human habitation” because it principally requires “outside support”in order for the occupants to inhabit those features.81 Moreover, economic life “of its own”was understood to mean that economic activities must not rely on outside support such asthose coming from a home State. Therefore, the “economic life … must be oriented aroundthe feature itself and not focused solely on the waters or seabed of the surrounding territorialsea.”82

Another significant criterion is that the legal status of a feature as a low-tide elevation,rock, or fully entitled island is to be based on its natural conditions.83 From a legal stand-point, this undermined an attempt by China to change the status of a feature by constructiondredging or other artificial means. More generally, this ruling prevents states from claimingvast maritime spaces through artificial reclamation and development of submerged or tinyhigh-tide features at sea.

The Tribunal summarized the criteria for the interpretation of Article 121(3) as follows:1. The term “rock” is not limited to features composed of solid rock. Thus, the geological

and geomorphological characteristics of a high-tide feature are not relevant to its clas-sification as a “rock.”84

2. The “status of a feature is to be determined on the basis of its natural capacity, withoutexternal additions or modifications intended to increase its capacity to sustain humanhabitation or an economic life of its own.”85

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3. The “critical factor” for the qualification of “human habitation” is the “non-transientcharacter of the inhabitation, such that the inhabitants can fairly be said to constitutethe natural population of the feature, for whose benefit the resources of the exclusiveeconomic zone were seen to merit protection.”86

4. The qualification of “economic life of their own” “will ordinarily be the life and liveli-hoods of the human population inhabiting and making its home on a maritime featureor group of features.” Thus, “economic life … must be oriented around the featureitself and not focused solely on the waters or seabed of the surrounding territorialsea.”87

5. Under Article 121(3) of UNCLOS, “the ability to sustain either human habitation or aneconomic life of its own would suffice to entitle a high-tide feature to an exclusive eco-nomic zone and continental shelf.”88

6. The capacity of a feature under Article 121(3) is an objective criterion based on the fea-ture itself. It is “concerned with the capacity of a maritime feature to sustain humanhabitation or an economic life of its own, not with whether the feature is presently, orhas been, inhabited or home to economic life.”89

7. “The capacity of a feature to sustain human habitation or an economic life of its ownmust be assessed on a case-by-case basis.”90

8. The “capacity of a feature should be assessed with due regard to the potential for agroup of small island features to collectively sustain human habitation and economiclife.”91

9. In the application of Article 121(3), while evidence of the objective physical conditionson a particular feature are relevant, the historical use of the feature is also reliable evi-dence in determining its capacity to sustain human habitation or an economic life ofits own.92

The effect of the preceding is to make it difficult for states to claim isolated and barrenfeatures as being fully entitled islands with EEZs and continental shelves. Supporting itsviews, the Tribunal cited the Preamble of the UNCLOS, which provides for the “realizationof a just and equitable international economic order which takes into account the interestsand needs of mankind as a whole and, in particular, the special interests and needs of devel-oping countries, whether coastal or land-locked.”93 The invocation of equity is significantbecause Article 121(3) “serves to disable tiny features from unfairly and inequitably generat-ing enormous entitlements to maritime space that would serve not to benefit the local popu-lation, but to award a windfall to the (potentially distant) State to have maintained a claimto such a feature.”94

Beyond individual maritime entitlements, however, the Tribunal adopted a macro-per-spective by taking into account the allocation of maritime entitlements within the interna-tional order created by the law of the sea. The adopted criteria protect the global commonsby disabling tiny features at sea to generate vast maritime spaces that encroach on the highseas and the International Seabed Area. In the words of UNCLOS President Koh, “it wouldbe unjust, and the common heritage of mankind would be further diminished, if everyisland, irrespective of its characteristics, was automatically entitled to claim a uniform eco-nomic zone.”95

Applying these criteria, the Tribunal ruled that all the contested features in the SouthChina Sea (i.e., Scarborough Shoal and those in the Spratlys) are either low-tide elevationsor rocks that are, at most, entitled to a 12-nm territorial sea.96 The effect is that international

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waters are preserved especially in the Spratlys area, which is the group of rocks, reefs, andcays in the southern sector of the South China Sea. This also means that none of these fea-tures may generate maritime zones that overlap with the EEZs from the mainlands of thePhilippines, Malaysia, Indonesia, and Vietnam.

Other implications

Taken together, the extinguishment of a state’s exceptionalist claim over maritime areas tothe extent that it is incompatible with UNCLOS and the creation of objective criteria for thecharacterization of a fully entitled island reinforce the universalist framework of theUNCLOS. Both findings protect and clarify individual maritime entitlements underUNCLOS by preserving a coastal state’s EEZ and continental shelf as against claims notbased on UNCLOS and setting objective standards in the determination of the status of fea-tures that generate these entitlements. Both findings also have the effect of precluding expan-sive maritime claims based on sources other than on the status of tiny or submerged features.As a consequence, the common maritime spaces, where rights are shared and exercised by allstates, are protected. The Award therefore upholds both the norm of exclusivity of the state’smaritime entitlements and the norm of protecting the global commons.

The Award significantly reduces the legal issues in the South China Sea dispute. It clarifiesthe maritime zones, as well as the status of the features in the South China Sea, while notaffecting the territorial issues among the high-tide features in the region.

Resolvability of the South China Sea Dispute: Article 311(3) agreements

When the Award was issued on 12 July 2016, China expectedly rejected the ruling, saying,through its Ministry of Foreign Affairs, that it “is null and void and has no binding force”and that China “neither accepts nor recognizes [the Award].”97 There were talks as towhether China was entertaining the option of withdrawing from UNCLOS.98 However, ifChina decided to withdraw from the Convention, it would not be released from its obligationto comply with the Award. Pursuant to Article 317 of UNCLOS, a state party’s “denuncia-tion” of the Convention does not “affect any right, obligation or legal situation of that Statecreated through the execution of this Convention prior to its termination for that State.”Moreover, China’s denunciation of UNCLOS would not protect it from similar future casesbrought by other states because “there is nothing to stop these countries from bringingclaims” within the minimum one-year period under Article 317 after which such denuncia-tion takes effect.99

Within UNCLOS, however, there may be a way for China to maintain its exceptionalistclaims in the South China Sea by using bilateral negotiations and consultations with thecountries directly concerned. China could enter into an agreement or a series of agreementswith the claimant states that might fit within Article 311(3) of the Convention, whichprovides:

Two or more States Parties may conclude agreements modifying or suspending the operation ofprovisions of this Convention, applicable solely to the relations between them, provided thatsuch agreements do not relate to a provision derogation from which is incompatible with theeffective execution of the object and purpose of this Convention, and provided further that suchagreements shall not affect the application of the basic principles embodied herein, and that the

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provisions of such agreements do not affect the enjoyment by other States Parties of their rightsor the performance of their obligations under this Convention.

An argument can be made that the “countries directly concerned” in the South China Seacan forge a deal that modifies or suspends provisions of UNCLOS involved in the Award.For instance, to maintain the Nine-Dash Line, China may convince the Philippines to limitits rights within the areas covered by the Nine-Dash Line in exchange for other benefits.Such an agreement may supplant the Award. Moreover, in order to consolidate the Nine-Dash Line, China may undertake similar deals with the other coastal states in the SouthChina Sea whose maritime zones overlap with different parts of the areas encompassed bythe Nine-Dash Line.

There are, however, four important qualifications for agreements to fit under Article 311(3) of UNCLOS. First, such agreements are to be applicable solely to the relations betweentheir state parties. Second, they “should not relate to a provision derogation from which isincompatible with the effective execution of the object and purpose” of UNCLOS. Third,“such agreements shall not affect the application of the basic principles embodied” inUNCLOS. Fourth, the provisions of such agreements are not to “affect the enjoyment byother States Parties of their rights or the performance of their obligations under UNCLOS.”The first and fourth qualifications relate to the inter se nature of Article 311(3) agreements,that is, that they affect only the parties to the agreements. The second and third qualifica-tions impose substantive constraints on such agreements—they should not contravene the“object and purpose” of UNCLOS and its “basic principles.”

The constraints in Article 311(3) are significant and are meant to preserve the universalistframework of UNCLOS. In other words, Article 311(3) agreements are not to be an avenuefor state parties to abandon or circumvent the UNCLOS as a “package deal,” which is the“omnipresent concept of the balance of rights and duties.”100 While Article 311(3) is permis-sive and allows state parties to modify or suspend certain provisions of the UNCLOS, theagreements in question must be consistent with the UNCLOS framework of fundamentaland interacting norms. In short, UNCLOS does not permit state parties to enter into agree-ments that are fundamentally incompatible to it.

In Article 311(6), the norm of protecting the global commons is specifically upheld: “StateParties agree that there shall be no amendments to the basic principle relating to the com-mon heritage of mankind… and that they shall not be party to any agreement in derogationthereof.”

More generally, Article 311(3) cannot be divorced from the universalist framework ofUNCLOS. Given the provision’s substantive constraints, China could not maintain a Nine-Dash Line claim under Article 311(3) because the claim is fundamentally incompatible withthe Convention’s object and purpose and its basic principles.

Conclusion

There is a fundamental incompatibility between China’s position in the South China Sea andthe law of the sea. China believes that it can legitimize its control over the South China Seaby obtaining, through bilateral deals, the consent of the relevant coastal states. This is thepremise of its preferred approach of bilateral negotiations and consultations.

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The law of the sea, developed over the centuries, has attained legitimacy by maintainingthe balance between individual state entitlements and the global commons, as illustrated bythe debate between Hugo Grotius’s Mare Liberum (“Open Seas”) and John Selden’s MareClausum (“Closed Sea”) in the seventeenth century.101 This balance rests on the practicalreality that the oceans and seas constitute one physical unit and, in the words of UNCLOS,“need to be considered as a whole.”102 As such, the law of the sea must necessarily adopt aunified framework that “takes into account the interests and needs of mankind as awhole,”103 not only states that are geographically adjacent to a disputed region. China’s posi-tion would effectively enclave the entire South China Sea and disconnect it from the grid, asit were, of the law of the sea. This outcome is not a solution to the South China Sea dispute,as it also does not take into account the interests of all states in upholding UNCLOS andmaintaining the global commons in the region.

The failure to take into account all maritime interests in creating a solution to the SouthChina Sea dispute necessarily creates an unstable situation in the region. Naval nations willcontinue to assert their traditional maritime rights in the global commons, such as freedomof navigation and overflight and the conduct of military activities.104 As is well known, theUnited States has been conducting Freedom of Navigation Operations in the South ChinaSea. These operations are intended to challenge “claims [that] are inconsistent with the inter-national law of the sea and impinge upon the rights, freedoms, and uses of the sea and air-space guaranteed to all states under that body of international law.”105 The U.S. Freedom ofNavigation Program was created in 1979 “to preserve [American] national interest and dem-onstrate a non-acquiescence to excessive maritime claims asserted by coastal states.”106 AsU.S. Chief of Naval Operations Admiral John Richardson said in July 2016, “The U.S. Navywill continue to conduct routine and lawful operations around the world, including in theSouth China Sea, in order to protect the rights, freedoms and lawful uses of sea and airspaceguaranteed to all. This will not change.”107

On 27 July 2017, the United Kingdom Foreign Secretary Boris Johnson announced thatthe United Kingdom has committed two newly built aircraft carriers to conduct freedom ofnavigation exercises including in the South China Sea.108 Johnson declared that this is “tovindicate [the United Kingdom’s] belief in the rules-based international system and in thefreedom of navigation through those waterways which are absolutely vital for worldtrade.”109 This coincided with UK Defense Minister Michael Fallon’s announcement thatthe United Kingdom plans to send a warship to the South China Sea in 2018 for freedom ofnavigation exercises.110 Fallon said, “We have the right of freedom of navigation and we willexercise it.”111

As an important economic and strategic region in the world, the South China Sea cannotbe carved from the legal regime that governs the rest of the world. A long-term and sustain-able solution to the South China Sea dispute needs to consider all the maritime interests bycreating a balance between individual state entitlements and the protection of the globalcommons. Without this balance, there is no stability because the outcome will likely be chal-lenged by states or organizations under the belief that their rights have been unduly dimin-ished. States will protect their own entitlements, as well as common rights beneficial tothem. The pursuit of this balance has been the objective of the law of the sea over the centu-ries. Its most recent form is UNCLOS, an unrivaled achievement in international coopera-tion in establishing a comprehensive regime for the law of the sea.

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It would seem that the most obvious way to resolve the South China Sea dispute is toapply UNCLOS as informed by the Award. In the first place, all the coastal states in theSouth China Sea, including China, are parties to UNCLOS. The United States may not beparty to UNCLOS, but it considers most of the Convention’s provisions as embodying cus-tomary international law.112 The coastal states accepted the 2002 ASEAN-China Declarationon the Conduct of Parties in the South China Sea, which expressly affirms “their commit-ment to the purposes and principles of… 1982 UN Convention on the Law of the Sea.”113

While the other coastal states are strictly not bound by the Award, it is a subsidiary sourceof international law that may help resolve their respective maritime disputes. The JointCommuniqu�e of the G7114 Foreign Ministers’ Meeting on April 2017 considered the Awardas “a useful basis for further efforts to peacefully resolve disputes in the South China Sea.”115

In resolving the South China Sea dispute, it is difficult to insulate the legal obligations ofState Parties under UNCLOS. The Convention has been an integral part of the dispute, asshown by its consistent invocation in diplomatic correspondences among claimant States.While states may enter into agreements that modify or suspend certain provisions ofUNCLOS, such agreements must not be incompatible with the object, purpose, and basicprinciples of the Convention. For the sake of argument, if the coastal states were able to enterinto an agreement that supersedes UNCLOS, they would have to face the practical need ofbalancing the maritime interests of the world. UNCLOS has already been able to achieve ameasure of that balance, with 168 state parties representing 87 percent of the membership ofthe United Nations and with the United States considering most of the Convention’s provi-sions as part of customary international law. Thus, in this scenario, the coastal states wouldhave to “reinvent the wheel”—one that has already been developed over centuries of humanactivities at sea.

Notes

1. Clive Schofield, “Dangerous Ground: A Geopolitical Overview of the South China Sea,” in S. W.Bateman and R. Emmers (eds.), Security and International Politics in the South China Sea(Routledge, 2009), at 18.

2. J. S. Wang et al., “Safety Assessment of Shipping Routes in the South China Sea Based on theFuzzy Analytic Hierarchy Process,” 62 Safety Science 46 (2014).

3. United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered intoforce 16 November 1994), 1833 U.N.T.S. 3 (hereinafter referred to as the “UNCLOS” or the“Convention”).

4. For a brief summary of the competing claims among the coastal States in the South China Sea,see Schofield, supra note 1, at 11. See generally Bill Hayton, The South China Sea: The Strugglefor Power in Asia (Yale University Press, 2014).

5. Bernardo Zuleta, “Introduction,” in The Law of the Sea. United Nations Convention on the Lawof the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea(New York: St. Martin’s Press, published in cooperation with the United Nations (Sales No.E.83.V.5), 1983), at xxiv.

6. Tommy T. B. Koh, “A Constitution for the Oceans,” on the website of the U.N. Division ofOceans Affairs and the Law of the Sea at www.un.org/Depts/los.

7. UNCLOS, supra note 3, Art. 13.8. Ibid., Art. 121.9. The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China),

PCA Case No. 2013–19 (Award, 12 July 2016) (hereinafter referred to as the “Award”), at 26–27,available on the website of the Permanent Court of Arbitration at www.pca.cpa, and 71–74. See

170 M. P. T. SISON III

also Zou Keyuan, “The Chinese Traditional Maritime Boundary Line in the South China Sea andits Legal Consequences for the Resolution of the Dispute over the Spratly Islands,” 14 Interna-tional Journal of Marine and Coastal Law 27 (1999).

10. China, Note Verbale No. CML/17/2009 (7 May 2009), available at www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf, accessed 15 July 2017.

11. Ibid., and see Award, supra note 9, at 71–74. For a Chinese perspective of the Nine-Dash Line,see Zhiguo Gao and Bing Bing Jia, “The Nine-Dash Line in the South China Sea: History, Status,and Implications,” 107 American Journal of International Law 98 (2013).

12. Ministry of Foreign Affairs, People’s Republic of China, “Foreign Ministry Spokesperson HongLei’s Remarks on Vietnam’s Statement on the Chinese Government’s Position Paper on Reject-ing the Jurisdiction of the Arbitral Tribunal Established at the Request of the Philippines for theSouth China Sea Arbitration” (12 December 2014), available at www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1218756.shtml.

13. China, Note Verbale, No. CML/8/2011 (14 Apr. 2011), 2, available at www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl_e.pdf (15 August 2017), andMemorandum from the Embassy of the Philippines in Beijing to the Secretary of Foreign Affairsof the Philippines, No. ZPE-070-2014-S (7 Mar. 2014), para. 4, reproduced in IV Memorial ofthe Philippines (30 March 2014), Annex 98, available at files.pca-cpa.org/pcadocs/The Philip-pines’Memorial - Volume IV (Annexes 61–102).pdf .

14. Antonio Carpio, The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in theWest Philippine Sea (2017), at 30, available at www.imoa.ph.

15. Ibid., at 30.16. The South China Sea Arbitration, supra note 9, I Memorial of the Philippines (30 March 2014),

at 2, available at files.pca-cpa.org/pcadocs/Memorial of the Philippines Volume I.pdf.17. Carpio, supra note 14, at 30.18. Award, supra note 9. See also The South China Sea Arbitration, PCA Case No. 2013–19, Award

on Jurisdiction and Admissibility, 29 October 2015 (hereinafter referred to as the “Award onJurisdiction and Admissibility”), available on the PCA website, supra note 9.

19. Award, supra note 9, at 471, para. 1203, “For the reasons set out in this Award, the Tribunalunanimously, and without prejudice to any questions of sovereignty or maritime boundarydelimitation, decides as follows.”

20. Ibid., at 413, para. 1203.21. UNCLOS, supra note 3, Art. 296(2).22. See also ibid., Art. 296:(1) Any decision rendered by a court or tribunal having jurisdiction under

this section shall be final and shall be complied with by all the parties to the dispute. (2) Anysuch decision shall have no binding force except between the parties and in respect of that partic-ular dispute.

23. China, “Statement of the Ministry of Foreign Affairs of the People’s Republic of China on theAward of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established atthe Request of the Republic of the Philippines,” available at news.xinhuanet.com/english/2016-07/12/c_135507744.htm.

24. On 27 March 2017, the Asia Maritime Transparency Initiative reported that China had nearlycompleted the construction of its air bases in Woody Island in the Paracels (a feature that is notcovered by the Award), and in Subi, Mischief, and Fiery Cross Reefs in the Spratlys (featuresthat are covered by the Award). See Asia Maritime Transparency Initiative): “China’s Big ThreeNear Completion,” available at amti.csis.org/chinas-big-three-near-completion.

25. Yoshifumi Tanaka, The International Law of the Sea (2nd ed., Cambridge University Press,2015), at 4.

26. On the concept of a “global public good,” see Gregory Shaffer, “International Law and GlobalPublic Goods in a Legal Pluralist World,” 23 European Journal of International Law 669 (2012),and Daniel Bodansky, “What’s in a Concept? Global Public Goods, International Law, and Legit-imacy,” 23 European Journal of International Law 651 (2012).

27. Award, supra note 9, at paras. 378–385. See Michael Green et al., Countering Coercion in Mari-time Asia: The Theory and Practice of Gray Zone Deterrence, Centre for Strategic and

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International Studies (CSIS), 2017), at 95–123, available at www.csis.org/analysis/countering-coercion-maritime-asia.

28. Green, supra note 27, at 119.29. For a timeline of the events in the 2012 Scarborough Standoff, see ibid., at 99. See also Francois-

Xavier Bonnet, “Geopolitics of Scarborough Shoal,” Research Institute on ContemporarySoutheast Asia, (IRASEC) Discussion Paper No. 14 (November 2012), at 5, at www.irasec.com/ouvrage34.

30. See Green, supra note 27, at 121.31. The South China Sea Arbitration, supra note 9, Jurisdictional Hearing Transcript (Day 1, 7 July

2015), at 23.32. Antonio Carpio, “The Rule of Law in the West Philippine Sea Dispute” (Speech delivered before

the Philippine Bar Association, 29 August 2013), available at www.imoa.ph/speech-the-rule-of-law-in-the-west-philippine-sea-dispute.

33. See Bonnet, supra note 29, at 5–8. Scarborough Shoal is also near the Bashi Channel (the water-way between the Philippines and Taiwan), which is “China’s outlet to the Pacific for its nuclear-armed ballistic missile submarines based in Hainan Island.” Carpio, supra note 14, at 40.

34. Mutual Defence Treaty between the Philippines and the United States (30 August 1951), 177 U.N.T.S. 133, Art. IV, states in part that “Each Party recognizes that an armed attack in the PacificArea on either of the Parties would be dangerous to its own peace and safety and declares that itwould act to meet the common dangers in accordance with its constitutional process.”Moreover,Article V of the Treaty provides that “an armed attack on either of the Parties is deemed toinclude an armed attack on the metropolitan territory of either of the Parties, or on the islandterritories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft inthe Pacific” (emphasis added).

35. “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdic-tion in the South China Sea Arbitration Initiated by the Republic of the Philippines” (7 Decem-ber 2014), at www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml.

36. Chinese Foreign Minister Wang Yi said, “If there are still some non-regional forces in the region,they don’t want to see stability and want to stir up trouble, we need to stand together and say‘No’ to them together.” “Wang Yi Tells ASEAN to Reject ‘Non-Regional Forces’ in South ChinaSea,” Nikkei Asian Review (25 July 2017), at asia.nikkei.com/Politics-Economy/International-Relations/Wang-Yi-tells-ASEAN-to-reject-non-regional-forces-in-South-China-Sea, and “ChinaBacks Joint Energy Development With Philippines in Disputed Sea,” Reuters (25 July 2017), atwww.reuters.com/article/us-philippines-china-idUSKBN1AA10L?ilD0.

37. UNCLOS, supra note 3, Preamble, para. 4.38. Ibid., Preamble, para. 2.39. Tanaka, supra note 25, at 5.40. See Jay Batongbacal, “The Maritime Territories and Jurisdictions of the Philippines and the

United Nations Convention on the Law of the Sea,” 76 Philippine Law Journal 123, 164 (2001):

Ultimately, the lines of a map, whether they are [UNCLOS’s] maritime zones, are meaninglessout at sea. Those lines do not impede the movement of resources, nor do they act as barriers tothe impacts of the many uses of the oceans. What matters is human activity, and how to man-age or influence such activity to the end that they do not diminish our interests in the areaswhere they occur.

41. Vienna Convention on the Law of Treaties, adopted 23 May 1969, entered into force 27 January1980, 1155 U.N.T.S. 331, Art. 31.

42. See Armin von Bogdandy and Sergio Dellavalle, “Universalism and Particularism as Paradigmsof International Law” IILJ Working Paper 2008/3 (2008), at 1, at www.iilj.org/publications/universalism-and-particularism-as-paradigms-of-international-law.

43. Award, supra note 9, at 86, para. 207.44. Ibid., at 71, para. 180.45. Ibid., at 87, para. 208.46. Ibid., at 87–88, para. 209.

172 M. P. T. SISON III

47. Ibid., at 88, para. 210.48. Award, supra note 9, at 91, para. 212. See China, “Vice Foreign Minister Zhang Yesui Makes

Stern Representations to US over US Naval Vessel’s Entry into Waters near Relevant Islands andReefs of China’s Nansha Islands” (27 October 2015), at www.fmprc.gov.cn/mfa_eng/wjbxw/t1310069.shtml.

49. Award, supra note 9, at 91, para. 212.50. Ibid., at 91–92, para. 214.51. Ibid., at 91–92, paras. 212–214.52. UNCLOS, supra note 3, Art. 17–26.53. Award, supra note 9, at 96, para. 225.54. Ibid., at 96, para. 225. Having found that China’s Nine-Dash Line claim is based on historic

rights and not historic title, the Tribunal ruled that Article 298(1)(a)(i) of UNCLOS did notapply and that it had jurisdiction to consider the Philippines’ Submissions No. 1 (“China’s mari-time entitlements in the South China Sea, like those of the Philippines, may not extend beyondthose expressly permitted by [UNCLOS]”) and No. 2 (“China’s claims to sovereign rights juris-diction, and to ‘historic rights,’ with respect to the maritime areas of the South China Sea encom-passed by the so-called ‘nine-dash line’ are contrary to the Convention and without lawful effectto the extent that they exceed the geographic and substantive limits of China’s maritime entitle-ments expressly permitted by UNCLOS”) concerning the validity of the Nine-Dash Line claim.In 2006, China availed itself of the optional exceptions to “compulsory procedures entailingbinding decisions” enumerated in Article 298 of UNCLOS, which includes disputes concerninghistoric title. See ibid., at 97, para. 229.

55. Ibid., at 102, paras. 243–244.56. Ibid.57. Ibid., at 105, para. 251.58. Ibid., at 103, para. 245.59. Ibid., at 107, para. 253.60. Ibid. See “Note by the President on the Final Clauses,” U.N. Doc. FC/1, 23 July 1979.61. Ibid., at 103, para. 247.62. Ibid., at 114, para. 269. For a discussion of the prevalent use of unreliable historical evidence in

the South China Sea dispute, see Bill Hayton, “When Good Lawyers Write Bad History: Unreli-able Evidence and the South China Sea Territorial Dispute,” 48 Ocean Development and Interna-tional Law 17 (2017).

63. Ibid., at 113, para. 268.64. Ibid. at 117, para. 277.65. See generally Hayton, supra note 4; Stein Tønnesson, “An International History of the Dispute in

the South China Sea” in Geoff Wade (ed.), China and Southeast Asia: the People’s Republic ofChina and Southeast Asia (Routledge, 2008), at 337–362; and Geoffrey Till, “The South ChinaSea Dispute: An International History” in Bateman and Emmers, supra note 1, at 26–41.

66. China, “Position Paper,” supra note 35, para. 9.67. Stefan Talmon, “The South China Sea Arbitration: Is There a Case to Answer?,” in S. Talmon

and Bing Bing Jia (eds.), The South China Sea Arbitration: A Chinese Perspective (Hart Publish-ing, 2014), at 32.

68. UNCLOS, supra note 3, Art. 288(1) and (2).69. See Award, supra note 9, at 41–42, para. 112. The following are the Philippines’ submissions

relating to the status of the features in the South China Sea: Submission No. “(3) ScarboroughShoal generates no entitlement to an exclusive economic zone or continental shelf; (4) MischiefReef, Second Thomas Shoal and Subi Reef are low-tide elevations that do not generate entitle-ment to a territorial sea, exclusive economic zone or continental shelf, and are not features thatare capable of appropriation by occupation or otherwise; (5) Mischief Reef and Second ThomasShoal are part of the exclusive economic zone and continental shelf of the Philippines; (6) GavenReef and McKennan Reef (including Hughes Reef) are low-tide elevations that do not generateentitlement to a territorial sea, exclusive economic zone or continental shelf, but their low-waterline may be used to determine the baseline from which the breadth of the territorial sea of

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Namyit and Sin Cowe, respectively, is measured; (7) Johnson Reef, Cuarteron Reef and FieryCross Reef generate no entitlement to an exclusive economic zone or continental shelf.”

70. The South China Sea Arbitration, supra note 9, Jurisdictional Hearing Transcript (Day 1, 7 July2015), at 65.

71. Award on Jurisdiction and Admissibility, supra note 18, at 60, para. 153.72. UNCLOS, supra note 3, Art. 13(1).73. Territorial and Maritime Dispute (Nicaragua v. Columbia) (Merits) [2012] I.C.J. Reports 624, at

641, para. 26 citing the Case Concerning Maritime Delimitation and Territorial QuestionsBetween Qatar and Bahrain (Qatar v. Bahrain) (Merits) [2001] I.C.J. Reports 40, at 101, para.204.

74. Qatar v. Bahrain, supra note 73, at 102, para. 206.75. Award, supra note 9, at 119, para. 280. UNCLOS, Art. 121(2).76. Ibid., at 119, para. 280.77. Bernard Oxman, “The South China Sea Arbitration Award,” University of Miami Legal Studies

Research Paper, No. 16–41, 6 September 2016, at 9, papers.ssrn.com/sol3/papers.cfm?abstract_idD2835534.

78. Award, supra note 9, at 227, para. 542.79. Ibid., at 215, para. 513.80. See Alexander Vuving, “South China Sea: Who Occupies What in the Spratlys?,” The Diplo-

mat (6 May 2016), at thediplomat.com/2016/05/south-china-sea-who-claims-what-in-the-spratlys.

81. Award, supra note 9, at 231, para. 550.82. Ibid., at 228, para. 543.83. Ibid., at 214, paras. 508–509.84. Ibid., at 227, para. 540.85. Ibid., at 227, para. 541.86. Ibid., at 227–228, para. 542.87. Ibid., at 228, para. 543.88. Ibid., at 228, para. 544.89. Ibid., at 228–229, para. 545.90. Ibid., at 229, para. 546.91. Ibid., at 229–230, para. 547.92. Ibid., at 230, para. 548.93. UNCLOS, supra note 3, Preamble, para. 6.94. Award, supra note 9, at 217, para. 516.95. “Summary Records of Meetings of the Second Committee, 39th Meeting,” UN Doc. A/CONF.62/

C.2/SR.39 at 285, para. 72 (14 August 1974), available at legal.un.org/diplomaticconferences/law-ofthesea-1982/docs/vol_II/a_conf-62_c-2_sr-39.pdf, cited in the Award, supra note 9, at 217,para. 519.

96. Award, supra note 9, at 473–474, para. 1203.97. Ministry of Foreign Affairs of the People’s Republic of China Statement, supra note 23.98. See, for example, Stefan Talmon, “Denouncing UNCLOS Remains Option for China After Tri-

bunal Ruling,” Global Times (3 March 2016), at www.globaltimes.cn/content/971707.shtml; TaraDavenport, “Why China Shouldn’t Denounce UNCLOS,” The Diplomat (24 March 2016), at the-diplomat.com/2016/03/why-china-shouldnt-denounce-unclos; and “Beijing Indicates It MayExit U.N. Sea Convention if South China Sea Ruling Disappoints,” The Japan Times (21 June2016), at www.japantimes.co.jp/news/2016/06/21/national/politics-diplomacy/beijing-indicates-may-exit-u-n-sea-convention-south-china-sea-ruling-disappoints.

99. Davenport, supra note 98. See UNCLOS, supra note 3, Art. 317(1): “A State Party may, by writ-ten notification addressed to the Secretary-General of the United Nations, denounce this Con-vention and may indicate its reasons. Failure to indicate reasons shall not affect the validity ofthe denunciation. The denunciation shall take effect one year after the date of receipt of the noti-fication, unless the notification specifies a later date.”

100. Zuleta, supra note 5, at xxiv.

174 M. P. T. SISON III

101. See Hayton, supra note 4, at 36–40. See also Carpio supra note 14, at 213: “China has failed torevive John Selden’s argument that a state can appropriate as its own sovereign waters an entireor almost an entire sea. At bottom, this is the core issue in the South China Sea dispute—a directattack on the Grotian foundation of the Law of the Sea” (emphasis omitted).

102. UNCLOS, supra note 3, Preamble, para. 4.103. Ibid., Preamble, para. 6.104. See Carpio, supra note 14, at 215.105. U.S. Department of Defense, “Freedom of Navigation Program Fact Sheet” (March 2015), at pol-

icy.defense.gov/Portals/11/Documents/gsa/cwmd/DoD%20FON%20Program%20–%20Fact%20Sheet%20(March%202015).pdf. See Lynn Kuok, “The U.S. FON Program in theSouth China Sea: A lawful and necessary response to China’s strategic ambiguity,” East Asia Pol-icy Paper No. 9 (June 2016), at 3–4.

106. U.S. Department of Defense, supra note 105, at 1.107. “U.S. Warship Challenges China’s Claims in South China Sea,” Reuters (21 October 2016), at af.

reuters.com/article/topNews/idCAKCN12L1O9?spDtrue.108. “Britain’s New Aircraft Carriers to Test Beijing in South China Sea,” The Guardian (27 July

2017), at www.theguardian.com/uk-news/2017/jul/27/britains-new-aircraft-carriers-to-test-beijing-in-south-china-sea.

109. Ibid.110. “Britain Plans to Send Warship to South China Sea in Move Likely to Irk Beijing,” Reuters (27

July 2017), at www.reuters.com/article/us-southchinasea-britain-idUSKBN1AC1CB, accessed 27July 2017.

111. Ibid.112. “United States Oceans Policy,” Statement of the President (10 March 1983), 19 Weekly Compila-

tion of Presidential Documents No. 10 (14 March 1984), at 383.113. 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea, para. 1, at

asean.org/?static_postDdeclaration-on-the-conduct-of-parties-in-the-south-china-sea-2.114. The Group of Seven, consisting of Canada, France, Germany, Italy, Japan, the United Kingdom,

and the United States.115. G7 Foreign Ministers’ Meeting Joint Communiqu�e (Lucca, 10–11 April 2017), at www.esteri.it/

mae/resource/doc/2017/04/g7_-_joint_communiqu_final.pdf.

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