Justice not served by tribunal’s ruling on South China Sea
Tony Carty says the Permanent Court of Arbitration oversteps in making new legal policy governing disputed islands
The Permanent Court of Arbitration decision on the South China Sea that none of the geographical features in the Spratly archipelago are islands, in accordance with the UN Convention on the Law of the Sea, deprives whoever owns them of any right to claim an exclusive economic zone or a continental shelf. China makes such a claim, of course.
The tribunal’s main argument against the status of the Spratlys as islands is the relative lack of habitation and economic activity on the islands. Therefore, the history of arguments about the basis of title to territory is relevant background to the award, even though the latter is ostensibly not about territorial title.
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The essence of the case for Chinese ownership of the Spratlys has been in fact a very significant and long-standing use of the islands by Chinese fishermen from Hainan ( 海南 ). An extensive British Foreign Office legal opinion of January 1974 to this effect was based on an exhaustive trawl of all records since the 1870s by its research department. There followed a memorandum by the foreign secretary to the British cabinet in June 1974, stating that China had the only legal claim to the Spratlys.
Reliance upon purely economic activity of one’s citizens as a ground for territorial title is an unusual basis for a state to claim sovereignty over the islands. However, the British took that position with respect to the Spratlys. The Law Officers of the Crown had issued two opinions, in 1879 and 1880 respectively, with the second opinion reversing the first, that concluded that licensing economic activity of one’s subjects would be enough without a formal act of annexation. However, no such activity ever followed up and so in 1932 Britain decided that any possible British claim had become extremely weak.
In 1974, it was noticed that the Chinese activity at the time, in the 1870s, was not considered, probably because China was not then regarded as a full member of the community of civilised states. That view of China was obsolete by the 1930s when China protested on all appropriate occasions, against the French in 1933 and against the Japanese in 1939. There had never been any significant French activity on the Spratlys and anyway they had now abandoned their claim. There was no question of competing Philippine or Vietnamese activity in the British view of the record and claims of these countries were rejected both by Britain and France since the 1950s.
What did the tribunal make of all of this? It was not concerned with ownership but it did regard economic use of islands by people as decisive for the interpretation of Article 121 of the UN Convention on the Law of the Sea. The tribunal does not contest any of the economic facts, which are stated above. Instead, it interprets Article 121 so as to render these facts irrelevant. It rules that for the purposes of Article 121, a human habitation must be permanent on the Spratlys and indigenous to them and the relevant economic activity must also be endogenous, arising only out of activity on the islands themselves, must not be artificially stimulated with outside support, and must not be connected either to the wider area around the islands or to a wider national economy, for example, bringing fishing or its profits to any so-called mainland.
How does the tribunal get to these conclusions? It admits that there is no effective legislative history of Article 121 as the drafting meetings kept no minutes. Indeed, the tribunal accepts that the article is not in itself clear and can only be read in the context of the wider purpose of the treaty. This was, in its view, to ensure that coastal states would be able to claim effective exclusive economic zones and continental shelves from their mainland coasts without these being cut to pieces by claims based on tiny remote geographical features owned by other states.
Therefore, judicial legal policy required the reinterpretation of Article 121 (3) provided by the tribunal. It now reads, with the additional words in italics: “Rocks and islands which cannot sustain permanent and indigenous human habitation and/or economic life of their own, without the use of the islands or rocks for any economic activity in any area beyond the islands themselves; or without economic activity directed outside the area (such as extraction of resources e.g. guano for export); or without reliance upon outside state assistance in economic development shall have no exclusive economic zone or continental shelf.
In conclusion, the tribunal determines that no subsequent state practice evidences a consensus opposed to its interpretation of the article. This is in spite of the fact that France, Japan and the US – just to mention three states at present vocal in their criticism of China – had called for Article 121(3) to be deleted and have proceeded to claim exclusive economic zones for features, some of which are geologically islands rather than rocks, but which have no habitation and no economic life. According to the ordinary meaning of article 121(1), the state practice of these states is in conformity with it. By implication, the tribunal is saying its power to make new legal policy by recourse to what it considers the wider purpose of the treaty trumps the practice of even leading states.
The tribunal has authority to interpret the treaty under Article 286, without the consent of both parties, if one of them asks for an interpretation. By not participating in the arbitration, China gave the Philippines and the Japanese president of the Law of the Sea tribunal the opportunity to choose four further judges who were unanimous in giving their judgment. In terms of Article 286, this is binding on China, though Beijing can renounce the convention with one year’s notice.
There is a lot of loose talk about China having to observe the rules of the international order, the rule of law, international law, and so on, but it is a question of who interprets the law. Here, there are two points to make.
Firstly, there is no career international judiciary. Judges Jean-Pierre Cot, Alfred H. Soons and Rüdiger Wolfrum are retired university professors. Their academic performance here is not remarkable, given that they ignore a state practice which does not conform to their opinion and that they consider almost no scholarly commentary on the law (just a few references to mainly European scholarship) even though that is the most usual avenue to state practice.
The Chinese have organised several international legal symposia since 2013 dealing with issues of jurisdiction and the status of geographical features, which are not discussed by the tribunal. The views expressed at these symposia need not have been accepted by the tribunal, but not even to mention them smacks of more than arrogance on the part of these retired professors.
Secondly, the role of the judiciary in any legal order has to be limited to the interpretation of norms about whose meaning there is a broad social consensus. Where there is fundamental disagreement about the meaning of rules, it is not appropriate for unelected legal officials to resolve the legal vacuum. This is especially the case where they are retired academics, not professionally trained judges, now somehow imagining themselves freed by their judicial office from giving decent consideration to the equally expert opinions of their colleagues.
The tribunal has gone outside its judicial function in playing a legislative role rewriting Article 121 of the Convention on the Law of the Sea to implement a goal of favouring coastal states wishing to project exclusive economic zones or continental shelves from their mainland coasts. The rationale of the treaty itself is that it is for the state parties to agree with one another equitable maritime boundary demarcations – also excluded by China by its reservation under Article 298 – and not for a tribunal to use a legislative power to knock one of the parties out of the picture.
Tony Carty is Cheng Yu Tung Chair of International Law at the Tsinghua University Law Faculty, Beijing