Critical Analytical Note

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SOUTH CHINA SEA DECISION

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Permanent court of arbitration in The Hague, established under Annexure VII of United Nations Convention on the Law of Seas, has ruled in favour of Philippines in dispute with respect to the claims over territorial waters and economic resources of the nine dash line region of South China Sea. Economic basis of the dispute is the carbon resource rich sea bed, fishing sites and perhaps one of the busiest shipping lanes supporting trade worth $ 5 Trillion a year. The legal basis of the dispute lays in the historical rights. China claims that it has had historically controlled the nine dash line region.  Tribunal considered that the Chinese navigators and fishermen, as well as those of other States, had historically made use of the islands in the South China Sea, there was no evidence that China had historically exercised exclusive control over the waters or their resources. Further, tribunal concluded that the Convention comprehensively allocates rights to maritime areas and that protections for pre-existing rights to resources were considered, but not adopted in the Convention. Accordingly, the Tribunal concluded that, to the extent China had historic rights to resources in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention.

The second basis of claims by china were the coral reefs and islands, within the region, that it claims to be its territory. The Tribunal first undertook an evaluation of whether certain reefs claimed by China are above water at high tide. Features that are above water at high tide generate an entitlement to at least a 12 nautical mile territorial sea, whereas features that are submerged at high tide do not. The Tribunal noted that the reefs have been heavily modified by land reclamation and construction, recalled that the Convention classifies features on their natural condition, and relied on historical materials in evaluating the features. The Tribunal then considered whether any of the features claimed by China could generate maritime zones beyond 12 nautical miles. Under the Convention, islands generate an exclusive economic zone of 200 nautical miles and a continental shelf, but “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

The Tribunal next considered the lawfulness of Chinese actions in the South China Sea. Having found that certain areas are within the exclusive economic zone of the Philippines, the Tribunal found that China had violated the Philippines’ sovereign rights in its exclusive economic zone.

Other issues considered include Harm to the maritime environment, aggravation of dispute etc.

In this post I have summarised basic issues considered by the arbitration court and legal rationalization of the same. In the next post I will shed light on the jurisdiction of the court and thereafter shall go onto analysing particular aspects of the dispute.

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