Arbitral Decision on South China Sea

The tribunal on the South China Sea (LTS) dispute held at the Permanent Court of Arbitration in The Hague is receiving a lot of attention from around the world. Unlike other international maritime legal cases, such as the maritime delimitation or confiscation of vessels, this case is directly related to a region that recently experienced an escalation in tensions and where the parties involved in the dispute are developing countries.

The Philippines, which has a gross domestic product (GDP) of US$272 billion, is taking on China, a nuclear power with a GDP of US$9.4 trillion and the second biggest defense budget in the world, which has a veto power as a permanent member of the United Nations Security Council.

At this point, it is very difficult to guess or predict the outcome of the arbitration case.

Prediction of the arbitration decision

The arbitration decision will have considerable significance for Indonesia as one of the region's countries that want peace, not an escalation of tensions. Aside from that, the decision will have various implications for Indonesian interests. In this context, this article tries to predict on the basis of educated guesses the result of the arbitration tribunal.

First, when might the decision be presented? In line with the procedures of the arbitration, which started in January 2013, and an interlocutory decision from October 2015 and the commencement of the substantive hearing in November 2015, a decision was expected to be given in June or July 2016. Since June has passed and the summer vacation will start in mid July 2016, most likely the decision will be announced between July 10 and July 15, 2016. In any case, the decision will be announced this July.

Second, let us consider the process of presenting the decision. Arbitration does not follow the same "ritual" as the International Court of Justice or the International Tribunal on the Law of the Sea, which give decisions through trial sessions. The arbitration decision is expected to first be passed on only to the parties directly involved and then announced on the Permanent Court of Arbitration (PCA) website.

Third, how might the judges elaborate their arguments? Since the interlocutory decision on the jurisdiction explicitly stated that the jurisdiction on a number of requests by the Philippines will be united with the substance of the lawsuit, the arbitration is predicted to give comprehensive legal arguments. This will impact the scope of the decision, which will likely range 300-500 pages.

Fourth, what about the substance of the decision? It very difficult to predict the content. However, seen from the claims of the Philippines, several things can be predicted. The Philippine requests consist of three general lawsuits and 15 specific claims. The editorial space here is obviously insufficient to discuss the 18 Philippine lawsuits in details. However, there are several of them that we need to know about.

The lawsuits are: (a) declare that the rights and obligations of the state related to waters, seabed and maritime features in the South China Sea (LTS) are set out by UNCLOS 1982 and that Chinese claims on the basis of the "nine dash line" be declared inconsistent and invalid; (b) determine whether, based on Article 121 of UNCLOS, several maritime features claimed by China and the Philippines are islands, low tide elevations or something else, such as rocks and shoals, and whether these features can grant maritime zone rights further than 12 nautical miles; (c) that the Chinese claim over the sovereignty and jurisdiction and "historic rights" to the maritime areas in the nine dash line is contradictory with UNCLOS and does not have legitimate effect against the Chinese claims in line with UNCLOS.

The arbitration will of course strictly state that the rights and obligations of the parties in dispute and all states in the UNCLOS 1982, which are related to maritime zones, continental shelf and maritime features like islands, reefs, rocks and coral reefs, are based on UNCLOS 1982. There will be a restatement of the principles of international maritime law.

The arbitration will likely give an interpretation of Article 121 (3) of UNCLOS, which stipulates that "Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf." This step is taken because, thus far, there is no clarity about the meaning of "rocks" or stones. Prof. Hasyim Djalal provided a definition of Article 121 (3) with the existence of a population of at least 50 people, the existence of fresh water, soil for agriculture and an area sufficient for fishing. However, that academic definition needs to get confirmation through a binding legal decision. The interpretation of stones included in the category of Article 121 (3) will give legal certainty on the meaning of Article 121 (3)

The arbitration is predicted to provide an explanation, the requirements and application on what is meant by historic rights and its relation to UNCLOS 1982, which does not recognize historic rights. This is important for the certainty of international maritime law. The arbitration will likely give a legal assessment on the disputed nine dash line and its associations with UNCLOS. What needs to be observed is the stance of the arbitration against the status of the nine dash line in the maritime zone claims and whether the arbitration will state explicitly that this claim is invalid or simply express it indirectly.

Impact on Indonesia

Fifth, we need to consider the impact on Indonesia. Indonesia is not a party in this arbitration and also not a party in the dispute of sovereignty over LTS territories. The arbitration decision will only be binding on the parties in dispute. However, the decision will have an impact on Indonesia through the interpretation of UNCLOS, both in connection with the LTS region and outside.

This decision will add a new dimension to managing disputes in the LTS. Meanwhile, the arbitration interpretation of Article 121 (3) will have wide impacts for Indonesia as an archipelagic country that still has a number of maritime boundaries that have to be resolved through negotiations. Palau, for example, still uses the Helen Reef, a coral group in the Pacific Ocean, as a basis to claims on the 200 nautical miles zone. If the arbitration states that the such a feature gets only a sea area of 12 nautical miles, claims of Indonesia's EEZ in the Pacific will get legal confirmation that will be beneficial for Indonesia. The interpretation of Article 121 (3) is predicted to be referred to by a number of countries in maritime boundary negotiations and can eventually become a legal reference.

Sixth, let us consider the impact on Indonesia's strategic environment. The arbitration can lead to polarization, if not managed properly, will eliminate the unity of ASEAN and the centrality of ASEAN in the region. The exit of the UK from the European Union (Brexit) is not a mere academic discussion, but there is a real possibility of replication in ASEAN. Indonesia as one of the founders of ASEAN and the biggest ASEAN country, which has thus far applied the "tut wuri handayani" leadership style (a leader must provide ethics and self-esteem) and not a dominance style in the region, needs to play its leadership role to maintain the unity and centrality of ASEAN.

Regardless of whether the above predictions are all correct, all wrong, correct in part, or wrong in part, the most important thing for us is that as an UNCLOS country party, Indonesia must comply with the UNCLOS and not provide an UNCLOS alternative version by submitting unreasonable maritime claims. Indonesia's real strength at sea is not only the Navy, but also compliance with international law, because since the beginning, the archipelagic country was born not from an expedition and an expansion of military power, but from the strength of arguments and the pens of Indonesian diplomats.

The arbitration will also be very good for international legal education for the Indonesian nation and should be used as mandatory material at universities and training courses for the enforcers of the law of the sea.

 

by Arif Havas Oegroseno

source Kompas, Monday, July 4, 2016