Tag: sovereignty

Naming Disputed Maritime Features in the South China Sea – “What’s in a Name?”

Written by Dr Youri van Logchem

China and Vietnam have a long history of incidents, because of them acting in relation to disputed parts of the South China Sea. A new chapter to this history was added at the beginning of May 2020, when Vietnam learned that China provided 80 maritime features, belonging to the disputed Spratly and Paracel islands in the South China Sea, with Chinese names. Three decades earlier, in 1983, China embarked on a similar naming exercise of features in the South China Sea.

Looking at the history of incidents between China and Vietnam, it was not the first time an act of naming by one of the States created conflict between the two States. An incident also occurred after Vietnam proclaimed that the ‘South China Sea’ was henceforth to be named as the ‘West Philippine Sea’ in 2012, to which China protested heavily.

But what is the legal value of naming maritime features in the Spratly and Paracel islands by China, from an international law perspective?

Faced with the recent naming, Vietnam protested. Reportedly, it even contemplated to take the issue to international adjudication in order to be settled. Vietnam’s act of protesting is significant from the view of international law, however. This is because, by undertaking a unilateral act, a State, in this case China, may have sought to assert a right, or might have sought to create a new right. A lack of a response to a unilateral act might be construed as that a State has acquiesced in the other State’s claim. In a nutshell, acquiescence is inferred from silence or inaction in a situation that a State should have responded. Protesting against the other State’s unilateral conduct may therefore sometimes be necessary for a State to protect its claims. However, the need for producing a response is intertwined with the circumstances at hand, and not all acts actually demand a response.

International law does not address the issue of naming explicitly (see more generally on this issue E. Franckx, M. Benatar (et al.), ‘The Naming of Maritime Features Viewed from an International Law Perspective’, China Oceans Law Review (2010), pp. 1-40), raising the question of how to deal with this issue. A possible answer may lie in the fact that a State has sovereignty over its territory. The latter encompasses a State’s mainland territory, internal waters, territorial sea, archipelagic waters and high-tide features, as well as the air space above them. An implication of the sovereignty that a State has over its territory, coming down to that it enjoys full powers, would be that this also extends to the naming of maritime features that are located within its territory. By that same token, the name attributed by a State to a part of its territory would be opposable to other States. Of key importance in this regard is that this opposability would extend only to parts of what can be considered a State’s territory. But all this is premised, however, on that there is one State that has a clear title over a territory. This is problematic when applied to disputed parts of the South China Sea, to which multiple States lay claim.

The precise motive underlying the naming exercise by China is difficult to pinpoint, and various motivations have been suggested for what led China to embark thereon. One article has argued that the naming was a reaction to Vietnam being particularly active in relation to the South China Sea, considering Vietnam to have taken advantage of China’s attention having been on dealing with the COVID-19 outbreak. Allusions were also made that, through this act, China sought to reassert its ‘sovereignty over the South China Sea’. This seems to imply that at least part of the reason lying behind the naming of the maritime features in the disputed Spratly and Paracel islands, is that China perceives it as way to strengthen its sovereignty claim over them. A difficulty is, however, that some of these maritime features are submerged. The consequence of this is that they are thus not territory. At the same time, only territory has entitlements to maritime zones under the Law of the Sea.

Maritime features that are below water at high tide are called low-tide elevations (Article 13 of the United Nations Convention on the Law of the Sea (LOSC)). A further consequence from that low-tide elevations are not territory, besides that they lack the ability to generate maritime zones of their own, is that there cannot be a sovereignty dispute between States over a low-tide elevation. This does not mean that they are not without relevance, however: if a low-tide elevation is located within 12 nautical miles (nm) from the baselines of a territory, it belongs to the State that has sovereignty over this nearby territory. Also, a low-tide elevation can be located within a disputed maritime area: that is, if the low-tide elevation is located within 12 nm from a disputed territory – for example, a disputed island.

A few of the recently named maritime features are high-tide features. When high-tide features are permanently above water and naturally formed, they are considered to be territory. This means that high-tide features may also be subjected to competing sovereignty claims by States. Under the LOSC, islands are divided into two categories: rocks under Article 121(3), and fully-entitled islands, as defined by Article 121(2). The main difference lies in the entitlements that they respectively have to maritime zones. Whereas rocks are only entitled to a territorial sea, not going beyond the maximum limit of 12 nm, and a contiguous zone of an additional 12 nm, fully-entitled islands are entitled to a territorial sea, a contiguous zone, an exclusive economic zone, and a continental shelf; and, if the requirements under Article 76 of the LOSC are met, also an extended continental shelf.

But what legal weight does the act of naming by a State carry in establishing ownership of a high-tide feature, or to indicate evidence of ownership? Put differently, does the act of naming lead to a State’s sovereignty claim being strengthened as a result?

Under international law, States that lay claim to the same land territory, which includes high-tide features, may seek to fortify their sovereignty claim through peaceful means. However, a State’s claim will not be further fortified once the critical date has passed. Although it may be difficult to pin down its exact moment in time, the critical date refers to the date when the sovereignty dispute between the States concerned has crystallised.

As to the question which State has sovereignty over a land territory, in the absence of a relevant treaty, the main issue is which State has a stronger title. International courts and tribunals, if they were to deal with a dispute of this type, will usually first identify the acts of peaceful administration that have been taken by States claiming the same piece of territory, to then weigh and compare these acts, to decide which of the States concerned has a stronger title over the land territory.

International case law in which the aspect of the naming of maritime features played a more substantial role is limited. However, the case of Minquiers and Ecrehos, which was dealt with by the International Court of Justice (ICJ) in 1953, does shine some light on the relevance of naming. In this case, the fact that the United Kingdom (UK) did not name some of the islands that were in dispute, was used by France to argue that they were not within the control of the UK (Counter Memorial of France, pp. 382-383). Particularly relevant in this regard is that the ICJ noted that it “cannot draw any conclusion from the naming of the islands since this question must ultimately depend upon evidence which relates directly to the possession of these groups” (Minquiers and Ecrehos, p. 55). Here, the aspect of naming did not play a significant role for the ICJ in determining which of the States concerned had a stronger title over the islands, because it did not evidence possession of the islands.

In light of the above, it is essential to make a distinction between low-tide elevations and high-tide features, as a sovereignty dispute can only arise concerning the latter. Then, a State may seek fortify its sovereignty claim peacefully. Whether a claim will be strengthened is entwined with whether the critical date has passed, however. But in the context of establishing sovereignty over what can be considered high-tide features, their naming may be an act that actually carries little weight for an international court or tribunal, if it would be asked to deal with the matter.

The Award of the Arbitral Tribunal in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China): the legitimacy of China’s position takes a heavy (at least symbolic) blow

On 12 July 2016, the Arbitral Tribunal, established pursuant to Annex VII of the 1982 Law of the Sea Convention (LOSC or LOS Convention), delivered its award in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China). In 2013, the proceedings were unilaterally initiated by the Philippines concerning the relevant disputes in the South China Sea between the Philippines and China. Having declared under Article 298(1)(a) LOSC its non-acceptance of arbitration with respect to maritime boundary disputes or those involving historic titles, China has refused to participate in the proceedings. Irrespective of the refusal of China to participate – which, in hindsight, seems to have not worked to its advantage – the Tribunal found in 2015 that it had jurisdiction to proceed to deal with the matter on the merits.

A critical aspect for the Tribunal to assess was whether the declaration made by China pursuant to Article 298(1)(a)(i) LOSC would prohibit it from considering the case on the merits, because the submissions of the Philippines were concerned with categories of disputes that China has excluded from the jurisdictional reach of an international court or tribunal: those concerning a historic title or maritime delimitation. The Tribunal concluded that the matters brought to its attention did not bear on the issue of delimitation (para. 214), since disputes over whether certain maritime features have entitlements to maritime zones are separate from the issue of delimitation, which is essentially concerned with dividing overlapping entitlements that have been established. On the matter of a historic title, the Tribunal went to analyse the meaning of ‘historic title’. In this context, it was deemed critical that reference was made to ‘title’, which means in legal jargon the complete ownership over something. The word ‘sovereignty’ only surfaces in the LOSC in connection with the territorial sea, where the coastal State has sovereignty up to a point that is 12 nautical miles (nm) removed from its coast. Given the Chinese reliance on that it has certain historic rights over the South China Sea, its claim was interpreted as not being concerned with the claiming of a historic title (paras. 225-226, 229).

There are a number of critical substantial findings of the Tribunal to be found in the award, some aspects which may have more wide-reaching implications. The following four findings will be briefly discussed in this blog post:

  1. One of the main findings of the Tribunal is that it dismissed the validity under international law of the Chinese ‘nine-dash line’. The specifics of the nine-dash line have never been really elaborated on by China, and have given risen to different interpretations (see e.g. here, here, here and here). One interpretation is that China has claimed to have some sort of a ‘special’ historic right over the relevant areas of the South China Sea that are within the nine-dash line, by virtue of a long and consistent practice of where some measure of authority was continuously exercised. A second interpretation is that the maritime features located within the nine-dash line are all under the sovereignty of China and, at least some of them, could project maritime zones up to at least the 200 nm limit. According to the Tribunal, the extent of maritime entitlements of States in the South China Sea are regulated by the LOSC, and the nine-dash claim of China, as far as it goes beyond the limits imposed by the LOSC, is superseded by the LOSC. Although the Tribunal found the alleged Chinese historic rights to be fully incompatible with the LOS Convention, basically, the rights China claimed to have are in fact assigned to other coastal States in the area under the concept of the Exclusive Economic Zone (EEZ). However, the door was left open for that under certain circumstances – and following, amongst others, the judgment in the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) – a historic title and right might be brought under the regime set out in the LOS Convention (para. 238).
  2. Another critical finding was that none of the maritime features China claims to have sovereignty over, including those that are part of the hotly contested Spratly Islands, have entitlements to an EEZ or continental shelf. Therefore, according to the Tribunal, there was no overlap of the entitlements of China and the Philippines to the same maritime space, given that China has no territory from which it is entitled to claim maritime zones up to at least 200 nm, which would have otherwise created an overlap with the entitlements and claims of the Philippines. As regards the hotly contested Spratly Islands, the reasoning of the Tribunal suggests that these have at best an entitlement to a territorial sea and a contiguous zone. According to the Tribunal, none of the disputed maritime features that are part of the Spratly Islands meet, without human assistance, the conditions set out under Article 121(3) of the LOSC, that is that they can sustain human habitation or economic life of their own. The threshold concerning when isolated maritime features would be entitled to an EEZ and continental shelf seems to have been set high by the Tribunal. Its approach as to how to define a ‘rock’ within the meaning of Article 121(3) of the LOSC may have more widespread consequences, and may raise some concerns on the part of other States that are faced with similar issues.
  3. Pursuant to the LOS Convention, different types of maritime features have different entitlements to generate maritime zones, ranging from those that can claim zones up to the 200 nm mark, or even beyond, to those that due to their characteristics have no entitlements to maritime zones at all. Falling into this latter group are so called low-tide elevations. These can, assuming they are located in close proximity to the coasts of States, be relevant in the measuring of the baseline, but have no entitlements to maritime zones of their own. In contrast, islands are principally treated similarly to land and have entitlements to a territorial sea, EEZ and continental shelf. Rocks, on the other hand, may only be accorded part of the treatment that islands receive: that is, whenever they fall within the paragraph 3 exception of Article 121 LOSC, that they are unable to sustain human habitation or have an economic life of their own, the most they can generate in terms of maritime zones is a territorial sea, and a contiguous zone of an additional 12 nm. For example, Scarborough Shoal, which has been the venue for various incidents between China and the Philippines, was classified by the Tribunal as a rock that is unable to meet the two conditions set out in Article 121(3) of the LOS Convention. Further, the Tribunal found that Mischief Reef is a low-tide elevation, which is thus unable to generate any maritime zones of its own. As a result of this classification, and given that low-tide elevations cannot be appropriated by States, there could be no sovereignty dispute over Mischief Reef, and more generally between China and the Philippines. The Tribunal went on to state that Mischief Reef is firmly placed in what can be regarded to be the EEZ of the Philippines. Therefore, amongst others, fishing activities that have been performed by Chinese fishermen at Mischief Reef infringed on the sovereign rights the Philippines has over the EEZ, pursuant to the LOS Convention. This same reef was also used by China to construct a large artificial island on top, whilst proceedings before the Tribunal were already set in motion. Given that this happened without the consent of the Philippines, which would have been required because Mischief Reef is a low-tide elevation located within its EEZ and continental shelf, China infringed on the sovereign rights that the Philippines has in this regard.
  4. More generally, and in addition to the actions undertaken concerning Mischief Reef, the land reclamation works and construction of artificial islands that China conducted on a broader scale, and in relation to a number of other maritime features (e.g. Cuarteron Reef, Fiery Cross Reef) in the South China Sea, were heavily condemned by the Tribunal. The Tribunal found that China aggravated the existing dispute between China and the Philippines through the reclamation works it conducted, whilst the dispute was brought to the consideration of the Tribunal. It also found that the Chinese actions aggravated the existing dispute between the parties over the Spratly Islands – however, it needs to be noted that this dispute figures, besides China and the Philippines, four additional players (i.e. Taiwan, Malaysia, Vietnam and Brunei). The Chinese reclamation works and building of artificial islands were also condemned for not being in line with the obligations that States have under the LOSC, particularly under Article 192 and 194(5) LOSC, in relation to the protection of the marine environment.

Directly after the award on the merits was handed down, China sought to brush over the validity of the award as being farcical in the extreme. In a further – undeniably weak – attempt to challenge the value of the award, a government sanctioned press release resorted to attacking a number of the individual members of the Arbitral Tribunal for exhibiting a perceived lack of consistency between the decision that the Tribunal arrived at and their earlier pronounced views in literature. In support of its position that the Arbitral Tribunal wrongly found to have jurisdiction over the dispute, in its view essentially by misconstruing what lies at the core of the dispute, China in this same press release cited heavily from an article previously published by Talmon, who expressed his misgivings over the Tribunal assuming jurisdiction over the dispute.

Given that the award was dismissed with a significant measure of exaggeration by China, and that it already indicated earlier, and subsequently reinforced its intentions to not follow the final outcome of the award, the question remains as to what effect the award might have on the (sometimes volatile) situation in the South China Sea. The position that China finds itself in is not an easy one. However, contrary to the ad hominin arguments aimed against individual members of the Tribunal, and the perceived biased composition it was argued to have according to the Chinese side, there is no doubt that the Tribunal was impartial and constructed in conformity with the LOS Convention – which not unimportantly, China is a party to. Although the award of the Tribunal is not enforceable, it carries substantial (diplomatic) weight. The fact that its legal position concerning the South China Sea was overwhelming rejected by the Tribunal will necessitate a rethinking on the part of China of its legal arguments, if it wants to pursue an amicable solution through diplomacy. Entering into negotiations with other claimant States bordering the South China Sea, on the basis of a position that has been essentially rejected by an independent Tribunal that has been constructed in accordance with the LOSC, is unlikely to bear much fruit.