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UNCLOS Verdict on South China Sea – Lessons for India?

Pratyush Singh is a third year student of the B.A. LL.B (Hons.) programme at National Law School of India University, Bangalore.

Image by naturalflow available here.


In 2016, the Arbitral Tribunal pronounced the South China Sea Verdict in The Republic of the Philippines v. The People’s Republic of China (the “South China Sea Verdict”). While the judgment was well received around the world for promoting the freedom to navigate, there were aspects of the verdict that went ignored. One of them was the status of maritime features, which are important because they help generate exclusive economic zone (“EEZ") rights. Regarding this issue, the tribunal concluded that none of the contested features could be categorized as islands, thereby denying China a vast amount of EEZ rights.


While a lot has been said about the specific impact of this decision, this paper attempts to showcase how the reasoning of the tribunal itself can lead to the status of islands around the world, especially India, being put up in question. To that end, this article first provides a brief overview of the decision.Second, it delineates the reasons why the rationale put forward by the tribunal lacks legal standing. Third, it showcases how the application of the verdict’s rationale can adversely impact the status of some islands of the Union Territory of Lakshadweep.


The UNCLOS Verdict on South China Sea

In 2013, due to the People’s Republic of China (the “China”) claiming control over some contentious islands in the South China Sea, the Philippines (the “Philippines”) initiated arbitral proceedings against China, questioning the legality of such activities. Based on the claims put forward by the Philippines, the findings of the tribunal can be summarized into four groups. First, with respect to China’s substantial claim over South China under its ‘nine-dash line,’ the tribunal stated that China’s claim of historic rights is not consonant with the UN Convention on the Law of the Sea (“UNCLOS”). Second, the tribunal opined that by blocking the Philippines’ access to fishing and extracting hydrocarbons near the area around Scarborough Shoal, China had violated the Philippines’ sovereignty over its EEZ. The tribunal also observed that constructing artificial islands near the Spratly Islands was a violation of Articles 192 and 194 of UNCLOS because such activities caused long lasting damage to the marine environment. Third, the tribunal accepted the Philippines’ contention that China’s construction of artificial islands had “aggravated and extended” the dispute resolution process. And fourth, the tribunal stated none of the disputed geographical features could be categorized as islands under Article 121 of the UNCLOS, and hence none of them would generate an additional EEZ.


The curious case of Article 121(3)

Article 121(3) of UNCLOS states that “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” In the South China Sea verdict, the tribunal used this provision to opine that all the contested land features fell under the category of “rocks” and thus would not give way to any new EEZ for China. This conclusion was important as the tribunal had initially declared that considering all of the land features as part of the Philippines’ EEZ “would require the Tribunal to rule out the possibility that any feature claimed by China could generate an entitlement to an exclusive economic zone that would overlap that of the Philippines.


VCLT

While interpreting Article 121(3), the tribunal stated that besides observing the text and objective of the provision as envisaged by Article 31 of the Vienna Convention on the Law of Treaties (the “VCLT”), it would also look at the travaux préparatoires (preparatory works), which is part of Article 32 of the VCLT. To a layman, this would give a perception that both Articles hold equal value and can be applied simultaneously. However, the travaux préparatoires under Article 32 is not a primary but a supplementary means of interpretation, which clarifies Article 31 when the ordinary meaning of the text under Article 31 leads to results that are vague in nature. The Permanent Court of International Justice undertook a similar approach as was undertaken in the landmark Lotus Case, wherein the Court stated that if the provision of law is clear in its meaning, then taking recourse to its preparation and negotiation is a redundant exercise. Even if we accept that the tribunal took a valid approach in applying both Article 31 and Article 32, the tribunal did not apply the law correctly, as discussed in the next section.


Interpretation of Terms

Article 121(3) uses the term “rocks” as opposed to other provisions, which use the term “islands.” The tribunal evaded this distinction by stating that any attempt to crystallise the distinction between the two terms failed during the negotiation of UNCLOS. However, going back to their own approach with travaux préparatoires, they failed to take cognizance of the fact that based on the drafting history, most drafters had looked at features such as size and composition as the differentiating factors between the “high-tide features.”


The second contentious interpretation was of the term “human habitation.” While interpreting the term, the tribunal first relied upon the meaning provided by the Oxford Dictionary but then included a qualitative element. Under the qualitative element, the tribunal stated that the term implies a long-term natural presence of humans in a stable community. It must be noted that there is no legal ground to impose such a high standard, when the text of Article 121(3) provides no such requirement.


Finally, the tribunal suggested that the phrase “economic life of their own “means that the land feature must be able to sustain an “independent economic life” without being provided resources from the outside world. Jonathan Charney argues that until the piece of land provides some resources that people can exploit and generate revenue from, it should be within the ambit of “economic life.” Other commentators have even gone so far as to say that any form of economic activity, for example,s even a lighthouse, should fall within the bracket of “economic life.” Coming to the instant case, the tribunal remarked that the mere presence of some fisherman around the rock would not amount to an “economic life of their own.”


Purpose of the Provision

While analyzing the purpose of Article 121(3), the tribunal stated that the provision helps prevent states from amassing maritime entitlements for tiny or potentially distant features of the land. Once again, no textual basis supported the tribunal’s conclusion. Such interpretation is also not in harmony with the existing control by the states over tiny features of the land. For example, France claims sovereignty over the tiny island of Tromelin, which is located more than 7000 km away from it in the Indian Ocean. Lastly, the tribunal referred to the negotiations of the Seabed Committee to remark that the overall effect of Article 121(3) does not grant EEZ rights to uninhabited islands. Such interpretation actively disregards the nuance between ‘inhabited’ and the ‘capacity to inhabit.’ The latter is relevant to the Article. For example, in Denmark v. Norway (Jan Mayen Case), even though the contested land feature (a scientific outpost) had been abandoned after some attempts at mining, the International Court of Justice took into account that it has factors that can sustain human beings, categorizing the land feature as an island. The entire line of reasoning followed by the tribunal seems to have ignored years of state practice such as the Elizabeth Islands for Australia or Mathew Island for France.


How can it impact India?

The tribunal’s standard for an island can be summarized as: first, capable of sustenance without the help provided from outside, second, the economic life must not be merely dependent on the water body around it but must have an economic identity of its own, and third, it should be inhabited by a community.


Consider the example of Lakshadweep. It is a union territory of India which constitutes a group of 36 islands in the Indian Ocean region. While in itself it only occupies 32 sq. kms, its strategic location provides India with 4,00,000 sq. kms of EEZ. Hence, any change in the status of any of the islands would have a significant impact on India’s political and economical interests. The problem lies in the fact that the tribunal’s reasoning deems many islands of Lakshadweep as ‘rocks’ under Article 121(3). Firstly, as noted in the Lakshadweep Development Report, the typology of the soil and the scarce supply of fresh water severely restrict Lakshadweep from being self-reliant. Secondly, like in the South China Sea verdict, the eleven islands of Lakshadweep are primarily dependent on fishing activities and thus do not form a part of an economic activity, which is not oriented around just the water body. Suheli Par (which is formed out of three islands, namely Valiyakara, Cheriyakara, and Indira-Shastri Dweep) has some fishing activities nearby but is completely uninhabited otherwise, just like 17 other islands of Lakshadweep. The tribunal does not consider any recourse regarding the size of the island as relevant.


Having completely failed the criteria put for the tribunal in the South China decision, the status of these islands can also be easily challenged. This becomes of extreme importance with the emergence of events like a US warship sailing within India’s EEZ of India near the Lakshadweep islands.


Conclusion

While the Indian Government may have supported the South China Sea verdict, it warrants a deeper inspection. Some facets of the judgment are obviously in tandem with the inherent principles of international law. However, that should not blind us to some subtle principles pushed through these judgments, including the categorization of islands as "rocks." This paper looked into the reasoning provided by the tribunal and how it can have broader ramifications if applied to the islands in India and the world at large. Such interpretations should be challenged even when the tribunal unequally applies them to the eastern countries.


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