5 unresolved questions in the South China Sea dispute

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An aerial photograph of the Fiery Cross Reef in the Spratly Islands group.

Manila (CNN Philippines Life) — The Permanent Court of Arbitration on July 12, 2016, may have decided that the Philippines is entitled to a majority of its maritime claims in the West Philippine Sea, but four months after the arbitration decision came out, experts are still uncertain over the future of the group of islands embroiled in a protracted dispute that has spanned decades and multiple State parties.

On Monday, November 14, experts from Japan, Singapore, and the U.S. visited the Philippines to talk in a forum at the University of the Philippines organized by the Institute for Maritime Affairs and Law of the Sea (IMLOS), and expressed that the situation remains as complicated as before — what with China’s refusal to accept the decision, the Philippines’ surprising pivot to bilateral talks with China, and most recently, the election of Donald Trump as president of the United States. Even as fishermen have been “allowed” to fish near Scarborough Shoal (one of the disputed territories), the Philippines’ own rights and claims, while established under international law, seemingly remain up in air, if State actions are any indication.

Months into emphatic declarations of “Spratlys is ours!” and euphoric celebrations of national pride after the decision, here are some sobering, unresolved issues that are overlooked regarding the continuing conflict, as raised by experts in the forum:

Mischief-Reef--South-China-Sea_CNNPH.png Mischief Reef in the Spratly Islands  

Considering China’s non-compliance with the arbitral decision, what value does it still have?

Yurika Ishii, an international law professor at the National Defense Academy of Japan, stated that the value of the award decided in the Philippines’ favor is not determined by China’s non-compliance with it. Gavin MacLaren, an energy and natural resources lawyer in Singapore who has worked with governments on maritime issues, said that the “value of the award depends upon its endorsement”: Other Southeast Asian countries, such as Vietnam and Malaysia, may utilize the decision to set forth their own claims before the international court, even though there is no reassurance that the court will come up with a similar decision. What is important, said MacLaren, is that the award is used as a basis to advance negotiations between other States. For Ishii, as Japan emphasizes the narrative of the rule of law in the seas, it is “not wise to ignore the decision, as the national and regional stake is so high.”

How do the bilateral talks with China help the Philippines?

Even though the administration has been criticized for engaging in “closed” bilateral, instead of “open” multilateral talks with China, and even as the prospects of a united ASEAN stand backed by the international court’s strong decision fell through, MacLaren states that bilateral talks were helpful in releasing tension with China at the outset. Jay Batongbacal, director of the IMLOS, holds the same view, and characterizes this as a “soft landing” for the Philippines post-arbitration, which ultimately led to Filipino fishermen freely exercising fishing rights in the Scarborough Shoal area. But it should not stop there: the experts advised that the Philippines should still seek to clarify and protect its exclusive economic zone, and proceed to enforce policies that are consistent with the arbitral decision.

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Who is liable for the environmental damage caused by China’s illegal activities in the Spratlys?

An oft-overlooked part of the decision states that China has caused damage to the environment, in violation of the law of the sea (specifically Arts. 192 and 194 of the UNCLOS), by engaging in massive reclamation activities and constructing its artificial islands, thereby harming fragile ecosystems (including coral reefs) and endangering the habitat of depleted, threatened, and endangered species, such as those of sea turtles. The decision even states that “Chinese authorities were aware of these activities and failed to fulfill their due diligence obligations … to stop them.” Nevertheless, there is no clear resolution on how China may be held accountable for its destructive activities in the West Philippine Sea.

What about the artificial islands constructed by China? Who owns them?

China’s large-scale reclamation activities include artificial island-building in areas such as Mischief Reef and Subi Reef. While the Court has stated in its decision, among others, that China’s installations and artificial islands in the Mischief Reef are unauthorized, since the Philippines has not given China the authority to construct these artificial islands (as it is within the Philippines’ sovereign right to do so), both Batongbacal and MacLaren agree that the delimitation of rights in the artificial islands remain unresolved. In other words: what actions can the Philippines now take toward these islands, if indeed their construction was unauthorized? The decision does not state this, according to MacLaren and Batongbacal.

Experts advised that the Philippines should still seek to clarify and protect its exclusive economic zone, and proceed to enforce policies that are consistent with the arbitral decision.

 

How do current events post-arbitration affect the judgment laid down by the Court?

China, despite the decision, continues to engage in land reclamation activities in the West Philippine Sea, according to Captain Raul Pedrozo, deputy general counsel of the U.S. Department of Defense. Pedrozo states that China “continues to militarize” through its increased presence at Scarborough Shoal, its conduct of combat air patrols at disputed areas, and by constructing airstrips at Mischief Reef, Subi Reef, and Fiery Cross Reef, the civilian purpose of which is questionable, according to Pedrozo. He views the grant of fishing rights to Filipinos as “a temporary backing down” by China, and stresses that the Philippines “cannot be granted access to its own territory” in Scarborough Shoal, which is the impression one may get from reading the news. In the long run, the Philippines must garner support for the rules as laid down in the arbitral decision, or else, said Pedrozo, “the efficacy of the rules will atrophy over time.”