Southeast Asia | Okinotorishima-ization: South China Sea arbitration case enters middle game

Okinotorishima-ization: South China Sea arbitration case enters middle game

July 18, 2015 9:26 AM (UTC+8)

 

Two disputed geographic features in the South China Sea that are the focus of island-building by the People’s Republic of China (PRC), Fiery Cross and South Johnson Reef, were both originally endowed with natural pre-existing rocks protruding above the waterline at high tide.  That’s big news.

This state of affairs was pointed out by Bill Hayton, author of the highly-regarded The South China Sea: The Struggle for Power in Asia on his Twitter feed.

What’s even bigger news is that the Philippines has already admitted the fact, in its “Notification and Statement of Claim in the West Philippine Sea” delivered to the Chinese embassy in January 2013.

And the Philippine government might be kicking itself for making so generous an admission in its filing with the UN Convention on the Law of the Sea (UNCLOS) Arbitration Commission seeking a ruling to invalidate the PRC’s notorious Nine-Dash-Line.

By conventional UNCLOS interpretation, an uninhabitable rock only gets a 12 mile territorial limit, not a 200 nautical mile Exclusive Economic Zone.

Fiery Cross Reef
Fiery Cross Reef

Both Fiery Cross and South Johnson Reef — two of the seven or eight South China Sea formations that are the focus of PRC island-building efforts — have miniscule, uninhabitable “rocks” that stick above water at high tide.  As will become clear, I’ve put “rocks” in quotation marks for a reason.

Perhaps the Philippines’ lawyers may have thought it was no big deal to concede that a few dots on the map were genuine above-surface features, especially since they had been surveyed and their existence was a matter of public record.

The big game, after all, is undersea resources, not uninhabitable rocks.  And if the Nine-Dash-Line is invalidated, the Philippine claim to fisheries, oil, and gas — especially the strategically and fiscally vital hydrocarbon trove at Reed Bank, an underwater feature with an estimated 16 trillion cubic feet in gas reserves —inside its presumed EEZ will be strongly supported.

But there is a shadow over the Philippines’ prospects.

Okinotorishima.

Until the Fiery Cross project builds out, Okinotorishima stands as the biggest island-building project in the Western Pacific.

By Japan.  Over 1000 miles south of Tokyo.

Over three decades, Japan has poured a reported $600 million dollars into forestalling the erosion of a couple of rocks no bigger than a studio bedroom at high tide.

Okinotorishima
Okinotorishima

Uninhabitable rocks.  Entitled only to a 12 nautical mile territorial sea, right?

Wrong.

Islands and rocks are addressed in one section of the UNCLOS treaty, Article 121, Regime of Islands.  Unfortunately, Article 121 is something of a syntactical train wreck and was reportedly a candidate for amendment or partial deletion during the original drafting process.  It created a useful loophole for Japan to protect the strategic value of its sizable investment in Okinotorishima.

Here’s the explanation from the Japanese think tank originally charged with formulating the Okinotoroshima gambit:

China (asserts) “Okinotori-shima is a rock, not an island, and the EEZ which is measured by a rock as the base point should not be recognized,” and has continued to conduct its marine survey activities inside that EEZ.

The “Regime of Island,” UNCLOS Part VIII, Article 121, by which China makes the definition of island the basis of its claim, is stipulated as follows.  (Article 121 is quoted in its entirety below.–PL)

  1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
  2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.
  3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

The government of Japan claims that the status of Okinotori-shima from the viewpoint of international law is an island in accordance with the provision of paragraph 1 above, while the basis China claims is in accordance with the provision of paragraph 3, and thus Okinotori-shima is made of rocks and not considered an island. The view of the Japanese government is that paragraph 3 provides the qualification not of island but rocks, and therefore, it is not related to the provision of paragraph 1. However, in order to be more persuasive to other countries regarding the status of Okinotori-shima as an island, Japan must clarify compatibility with the paragraph 1 as well as not contravene paragraph 3. The preservation of Okinotori-shima as an island is an agenda urgently required for Japan

So, Okinotorishima isn’t “rocks”; it’s “an island”, or at the very least it’s “not definitely rocks” according to the public declaration of the Japanese government and a lot of careful parsing by Japanese academics.  And by the Japanese government’s interpretation of Article 121, only uninhabited “rocks” can’t have EEZs.  Uninhabited “islands” can.  So Okinotorishima is entitled to a 200 mile EEZ.

And no one can say them nay.

And the way to make it more “islandy” is through … island building.

Is UNCLOS going to sort this out?

No.  Without revision of Article 121, UNCLOS can’t even clarify the terms under dispute, let alone adjudicate them.

A PRC scholar remarked:

Since there exists no official or authoritative clarification with regard to the application and interpretation of Article 121, paragraph 3, of the UNCLOS, and there are no institutional apparatuses established for reviewing, monitoring and supervising how well State parties observe their duties under the Convention, coastal States are exercising extensive powers to claim larger sea areas by applying or interpreting Article 121(3) in accordance with their national maritime interests.

So, perhaps the correct understanding of PRC activities on the two above-high-tide features of Fiery Cross and South Johnson Reef is not “building the great wall of sand”; it is “Okinotorishima-izing.”

And, if one draws a 200 nautical mile Okinotorishima-worthy radius around South Johnson Reef, the circle passes through the heart of the Reed Bank seamount.

So it appears that a ruling invalidating the Nine Dash Line may not signal the end game in the South China Sea, with the PRC retreating in disorder as the Philippines advances to claim its undersea patrimony.

Instead, the PRC might swallow its consistent objections to the Okinotorishima precedent to assert 200-mile EEZs around some or all of its holdings.  If it does, the PRC claim will overlap with the EEZ asserted by the Philippines based on its continental shelf.

Here’s what is supposed to happen in an EEZ dispute, according to the Philippines’ most forceful advocate, Judge Antonio Carpio:

Under UNCLOS, states that opt out of compulsory arbitration in maritime delimitation of sea boundaries cannot opt out of compulsory conciliation. While the report of the conciliation commission is non-binding, it will have persuasive authority as the equitable boundary delimitation under international law.

With the United States not even a member of UNCLOS regime and Japan is one of the biggest offenders against the spirit of UNCLOS on island issues with its Okinotoroshima gambit, it looks like Beijing might deem itself possessed of adequate grounds to declare itself unswayed by any “persuasive authority” wielded by the conciliation commission.

Worst case, the PRC sends its HYSY 981 rig and an escorting flotilla chugging into the Reed Bank area in exercise of its purported EEZ rights, and the US, Australian, and Japanese military forces, instead of protecting lawful Philippine activities from PRC harassment, finds themselves trying to balk a well-protected and defiant PRC drilling operation.

Next-to-worse case, the PRC declares its withdrawal from UNCLOS, a threat to the reach and credibility of the UNCLOS system that the PRC has perhaps already communicated to UNCLOS and presumably weighs on the minds of the arbitration commissioners in the Nine-Dash-Line case.

Standing up to the PRC has evoked considerable patriotic sentiment and pride in the Philippines.  However, the awareness that the resort to lawfare may not yield a sharp, cathartic victory and instead turn into a long, bitter struggle between a vengeful PRC and the Philippines (and its allies) seems to be sinking in.

A noteworthy development was the notification in March 2015 by the Philippine Department of Energy directing the designed Philippine concessionaire for Reed Bank, Forum Energy, to suspend activities since the area was “disputed.  Both President Beningo Aquino III and Forum’s chairman, megatycoon Manuel V. Pangilinan, have declared their willingness to conduct joint development of Reed Bank with the PRC.

Since the PRC is unlikely to be swayed by these blandishments now that the Philippines initiated the Nine-Dash-Line arbitration process, it is possible that the audience for Aquino and Pangilinan’s declarations is Philippine business people who are getting cold feet and need some assurance that the government has left its China options open in case defying the PRC does not turn into a strategic and economic bonanza.

In a recent op-ed, Richard Javad Heydarian, the leading defender of the Philippine strategy in the Western media, endeavored to manage expectations if the Philippines does not prevail in the arbitration case…or prevails and the PRC disregards the ruling:

One of the most fundamental limitations of the Tribunal is that it can’t exercise jurisdiction on the question of ownership and sovereignty claims in the South China Sea. At best, it can question the validity of China’s sweeping Nine-Dashed-Line claims as well as the admissibility of its artificially-created islands.

Both China and the Philippines have expressed reservations with subjecting their territorial claims to the International Court of Justice (ICJ), which is the body that can actually adjudicate on sovereignty claims. In short, international law as a mechanism to directly resolve sovereignty-related disputes is out of question.

Although, it seems many Filipinos have misunderstood — partly because of the overly upbeat pronouncements of the Philippine government and the shortcoming of the media — the ongoing arbitration at The Hague as one that involves direct adjudication of territorial claims.

Heydarian’s proposed remedy—beefing up the Philippine military and strategic posture to face down China and strengthen Manila’s position for a prolonged struggle—would seem to be exactly the kind of grinding, escalating crisis with a supersized regional antagonist that the UNCLOS lawfare gambit was intended to avoid.  And it’s an indication that the Philippines’ struggle with the PRC is probably still far from its endgame.

Peter Lee runs the China Matters blog. He writes on the intersection of US policy with Asian and world affairs.

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