Lawyers Road Review

I have decided I like the idea of Ernest Hemingway better than the man. I mean when we think if him there in the 1930’s the world was just so wide open, wasn’t it? Hanging out in Madrid during their Civil War he was likely the first war tourist.

It might be said that American actually experienced “freedom” and yet freedom isn’t free. The world may have been a wide open place for creativity, but also aggression.

It was all pre-World War II, before all the costs of that conflict that would lead to a series of constructs to avoid World War III, but also resolve more local disputes.

Efforts like construction of a United Nations where dialog would replace armed conflict, and known conflicts could be replaced by structures we have interior to each nation; in another word, “law”.

So much for Hemingway. The Law of the Sea is not romantic work of writers or poets. Instead, it is a product of lawyers.

Adopted in 1982, the UN Convention on the Law of the Sea, or UNCLOS, is meant to address all the conflicting claims around the world where there are littoral regions of coastal countries which had invariably want to extend these boundaries by drawing the line further and further out to sea to so as to declare a greater territory and exclusive economic zones.  

Subsequent to signing on to the agreement the Peoples Republic of China has decided it didn’t get enough in 1982 so they have adopted their own lineal definition of what is theirs. This line is a vast U shape, often referred to as the “Nine Dash Line” to declare virtually all of the South China Sea belongs to them.

After all, it has their name on it; South CHINA Sea. It’s simple, right?  

And this is where the lawyers come in. Lawyers will tell you title is not always controlling and true to form, the UN Convention on the Law of the Sea essentially guts this argument. Here are some of the basic definitions:

A) Everyone with a coast can call the first 12 nautical miles from that baseline their territory. Also each of these states can claim 200 nautical miles (NM) offshore as an exclusive economic zone (EEZ).

B) Offshore of these coastal states are features imaginatively called “islands” defined as those lands that can sustain human life. This counts as territory and enhance the coast countries claim, granting each a 12 mile territory and a 200 nautical mile exclusive economic zone to each island.

C) But then there are those bits of land, rocks mostly, which stand above high tide but cannot sustain human life. These grant the owner the 12 mile territorial rights, but no economic zone.

D) Then we see the low tide elevations, rocks or shoals which rise above the seas and oceans only at low tide. These are meaningless says the treaty. So are rocks and shoals which never see the sun at all.

If you look at a map of the South China Sea you can see it is a crowded neighborhood. Claims from Vietnam, Malaysia the Philippines and each of the China’s overlap. The Peoples Republic has made an effort to generate what lawyers would call an adverse possession claim with the Nine Dash Line, operating there openly and notoriously, actually and under a claim of right, and routinely declare it is exclusive to them and uninterrupted.

To challenge the exclusive and uninterrupted elements of the claim, warships of the United States Navy and those of our allies regularly sail in these waters. The US Navy calls them “Freedom of Navigation” exercises. The Peoples Republic call them a lot of things, but most recently “vile.”

Why do all of this?

While there are some mineral rights at stake there, and the local countries dispute fishing rights constantly in the region, the world itself is concerned in so far as so much of the commercial shipping this globalized economy depends on transits these waters. If we allow the claim to exist unchallenged, we invite a day when the Peoples Republic shuts everyone out of what the UNCLOS calls international waters. Most recently they have developed the armaments to challenge trespassers. 

The lawyers of course want to get this thing into court to resolve the matter.

In 2013 the Philippines filed for declaratory relief in the Permanent Court of Arbitration in the Hague on the topic of who owned what of the Scarborough Shoal, just off their coast and well over the 200 nautical miles from the Peoples Republic of China, the respondent.  The Subi Reef for example, part of the Scarborough Shoal is about 650 NM miles from mainland China.

The Peoples Republic had been arguing prior to this that there was some ancestral rights generated by their fishermen who sailed to these grounds. The trouble with this argument is twofold: first it ignored the ancestral fishermen and other seafarers from all these other countries who similarly sailed there, notably the neighbors like the Vietnamese, but also the Spanish, Dutch, French and British,  not to mention the United States, and secondly the UNCLOS does not recognize this notion of ancestral claim anywhere in the statute.  

Seeing they were going to lose, I presume, the Peoples Republic decided to not participate in the hearing at the Hague.

The Court ruled in 2016 for the Philippines. I would not call this a default order. The Peoples Republic got spanked.  

Starting with a recitation the statute specifically contemplates non-participation and the court retains jurisdiction in any case, the ruling plows through the ancestral claims and invalidates this Nine Dash Line claim altogether; a broad ruling not limited to the Scarborough Shoal.  No better comment illustrates how far afield the People’s Republic is from what everyone else agrees is international law than this part of the Permanent Court of Arbitration press release concerning the order:

Historic Rights and the ‘Nine-Dash Line’: The Tribunal found that it has jurisdiction to consider the Parties’ dispute concerning historic rights and the source of maritime entitlements in the South China Sea. On the merits, the Tribunal concluded that the Convention comprehensively allocates rights to maritime areas and that protections for pre-existing rights to resources were considered, but not adopted in the Convention. Accordingly, the Tribunal concluded that, to the extent China had historic rights to resources in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention. The Tribunal also noted that, although Chinese navigators and fishermen, as well as those of other States, had historically made use of the islands in the South China Sea, there was no evidence that China had historically exercised exclusive control over the waters or their resources. The Tribunal concluded that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’.

The deal was made in 1982. The Peoples Republic claim is merged in the settlement. Get over it.

The Peoples Republic ignored the order but somewhat maddeningly they continue to claim they are right. They also attack the problem by aggressive use of the statute itself.

To do so they have decided to employ the rights which accompany the term “island” in the UNCLOS  by taking a rock or a shoal and adding land to it, “island building” in effect. They began with the Subi Reef then moved on to the providentially named Mischief Reef, followed by the Johnson Reef, the Hughes Reef, the Gavin Reef, Fiery Cross Reef etc. All of these appear to be created to support military craft of one sort or another and have become more or less operational; unsinkable aircraft carriers.

The Peoples Republic now claim island status and all that extra territory and economic zones under the UNCLOS; a 12 NM territorial waters and a 200 NM EEZ stretching out throughout the Nine Dash Line. Problem solved.

Not so fast. The Convention thought this might be tried and expressly granted artificial islands no rights at all.  UNCLOS Article 30 (8) Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.

The Peoples Republic ignores this. We, and the rest of the world do not recognize these artificial islands under international law and sail past these structures closer than 12 NM with warships. This draws all kinds of diplomatic protests from the Peoples Republic and plenty of saber rattling, a pair just this past week.

If you are thinking something has to give in this situation you are right. We already have the order. What contempt proceedings are available? War? Haven’t we come full circle to Hemingway drinking beer in Madrid as a conflict escalates?

For this lawyer, I have to ask the question whether an international law of the sea really works at all?

Is it to be called “law” if there is not a predictable sanction when breached?

Or is it just wishes for the fishes?