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The Role of the Law of the Sea in the East and South China Sea Arbitration

The Role of the Law of the Sea in the East and South China Sea Arbitration

For years, many of the most disputed debates within the international world have included water. Many people have even questioned whether the next world war will be about water and the shortages humans face, as a whole. To this regard, many international disputes regarding water have surfaced to greater importance, especially with the realization that climate change is impacting the world far greater than was once believed. This climate change trend has sparked what can be considered more drastic measures taken by the neighboring states in the Asian-Pacific region. Japan, China, Taiwan, the Philippines, and the Korean Peninsula are all major states impacted by adverse political and economic effects in the area, and all have disputed their contested areas for centuries. These disputes can be traced back to a time of imperialism and expansion of empires, spanning the Sino-Japanese War of 1894, World War II defeats and Cold War geopolitics, adding complexity to claims over the islands. Whether Japan is losing its fisheries and access to sustainable diet, or to China creating new islands, the coastal states in this region are starting to lack the cooperation they had when economic zones were created. Likewise, sovereignty has also been placated within this economic zones. Thus, the modern day disputes that have risen, especially with the United States pivot towards the region, have concluded a more complex understanding than just legal components of international law, climate change, and economic territorial zones.

A way to solve territorial disputes, linked to political and economic crisis, is to arbitrate between the parties, and in this context, it usually involves an international organization as a mediator. To understand how the arbitration occurs in the Asian-Pacific region, the specific outlines of the Law of the Sea need to be primarily understood within the context of the South China Sea. Most recently, in the Permanent Court of Arbitral Tribunal in The Hague between China and the Philippines, the court clarified many historic rights that have been claimed, that set a precedent for the rest of the South China Sea. The Tribunal stated that under UNCLOS (UN Convention on the Law of the Sea: “there is no legal basis for any Chinese historic rights within the nine-dash line.” This is important because this dashed line (which has also been known as the ten-dash and eleven-dash line), has been claimed by the Republic of China (Taiwan), and thus the People’s Republic of China (China), which was claimed to allow a majority controlled portion of the South China Sea. The difference between this space and another geographic location are based in three factors. First, China has begun to build artificial islands with military-ready landing strips… in an area where there is still legal deliberation occurring for contested area, and claims to land that they do not have. Second, there are four other countries and the territory of Taiwan that are also claiming contested territorial claims to the area, which would definitely lead to more disputes between surrounding fishing, environmental impact and blames, military strategy placement, and more. Third, there are major ecological, environmental, and physical changes that have occurred in the area due to rising populations, state demands to sustain these populations, and unchanging demands per population metric.

The situation in the South China Sea has unduly caused stress on the environment in the area and thus, has created a major problem for the populations of animals, plants, insects, and others in the area. Non-state actors, such as the Center for Strategic and International Studies (CSIS) and the Council on Foreign Relations (CFR), have researched and issued statements regarding the environmental impacts of these arbitrations. They claim that “total fish stocks in the South China Sea have been depleted by 70-95 percent since the 1950s and catch rates have declined by 66-75 percent over the last 20 years [even though] The South China Sea is one of the world’s top five most productive fishing zones, accounting for about 12 percent of global fish catch in 2015 [with] more than half of the fishing vessels in the world operat[ing] in these waters, employing around 3.7 million people, and likely many more engaged in illegal, unregulated, and unreported fishing.” This poses an enormous problem for the sustainability of the area, both for the populations of the countries surrounding these waters, and also for the environment.

The populations of the coastal areas in the region have already begun to complain, citing shortages of food, limited diversity of species, and increased water temperatures. A well-known indicator of ocean climates, stress, and temperatures are coral systems. Corals are large bodies of cellular organisms that build on each other, and specifically, in the Asian-Pacific corridor, are known as the ‘Coral Triangle.’ This Triangle is located within the main dispute of the South and East China Sea areas. Already, major coral systems, valued at up to $100 million annually, have begun to die off. Without corals, and consistent monitoring of these systems, which is difficult to conduct with off-shore welling, building of islands, and general overfishing, the economic and sustainable benefits of these creatures will diminish. Coral ecosystem impacts are only the beginning of biological degradation that have impacted the legal system and the people, and is incredibly important to focus on.

Lastly, on the South China Sea relations, the Tribunal, which had previously ruled against Chinese historical rights also created other legal thresholds and jurisprudence. Although young and being developed, the jurisprudence of international courts is moving swiftly in the actions taken by Asian nations. Specifically and most recently, the Tribunal issued a ruling on what qualifies as an island for the first time in its history, saying “To qualify as an island, a geographical feature in its natural condition needs to be able to sustain ‘a stable community of people’ and economic life.” Since the claims made by China in the  China-Philippines area were deemed not islands, the Tribunal deemed them rocks, and rocks are incapable of ‘generating their own exclusive economic zone (EEZ).’ Which means, there is no legal basis for any entitlement by China, and by governing maritime law, the long-disputed Spratly Islands chain, or Scarborough Shoal, rather “rocks,” are under Philippine-bound EEZ territory. By declaring the Spratly Islands to be rocks, the Tribunal was able to validate the Philippines’ EEZ territory without delimiting any boundaries, which the Tribunal lacks jurisdiction, and thus, any interferences violates the Philippines’ sovereignty as a nation. These major statements in the maritime law community have ‘made waves’ in terms of understanding what an island is, what a rock is, how geographical settlements can be disputed, and what kind of jurisprudence is created for future Tribunal arbitrations.

Now, understanding the maritime law situation in the South China Sea allows for an understanding in the East China Sea. The East China Sea has a very similar occurrence. This large fishery-dispute within Asian waters have spanned Chinese intervention and claims. Understanding both of these Seas arbitrations is understanding that China is the second-largest economy, and the fastest-growing economy, that needs to support its populations, its economic and military might, and its political power. With 5.3 trillion USD trade dollars annually passing through the South China Sea and East China Sea, 11 billion barrels of oil, 190 trillion cubic feet of natural gas, and with 90% of Middle Eastern fossil fuel exports projected to go to Asia by 2035, it is evident why the trading strengths and force of the East China Sea are imperative not only to China, but Japan and Korea. The economic powerhouses of the region have a lot to lose if international courts do not rule in their favor, and if their military strength is not strong enough to counter their opponents. The power projection from building islands, to increasing fortification, to possible losses in trade deals is monumental. At the moment, the East China Sea legal arbitrations are developing and in dispute; however, further policy actions can be found throughout various non-state organizations and international legal institutions.

The larger impact of the Asian-Pacific region from a non-national security standpoint is imperative in understanding why the situation affects the rest of the world. In a recent Congressional Research Service report, it was strictly defined that “claims of territorial waters and EEZs should be consistent with customary international law of the sea and must therefore, among other things, derive from land features. Claims in the [South China Sea] that are not derived from land features are fundamentally flawed.” This specific report further develops how the legality, or rather illegality, of many nations within the region, not just China, may be found at fault for their actions. The tragedy of the commons incurring due to climate change issues, overfishing, and environmental degradation has caused an even larger concern, and a push towards legal arbitration. Overall, this corridor in the world, which is only a small example of the many regions that are experiencing similar water issues, is of high importance, and one that should not be about competing claims; rather, the South China Sea and the East China Sea arbitration disputes are a larger example about peace and stability in the region.

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