Political claims aside, the verdict of the arbitral tribunal commented on the nature of environmental damage caused by China’s indiscriminate reef reclamation, which today lies at a staggering 3,000 acres that was built at a speed peaking at 3.5 acres a day. Within two years, China had not only reclaimed seven reefs but had been successful in completely destroying their natural resources and militarising the same with airstrips in tow. From 2014 to 2016, this relentless speed of development resulted in China further pushing its expanding boundaries. In 2015, China announced that it would declare an air identification zone above the SCS, claiming it as part of Chinese airspace. This eventually prompted the United States to intervene by sending a destroyer into the territory on October 27, 2015.

The destroyer was promptly followed by two Chinese ships for a long time, but not at any time obstructed. Since then, the US has conducted various military drills alongside Philippine forces as well as independently. However, this has only led to an escalation of Chinese military presence in the region. Needless to say, it is inconvenient for the United States to be engaged in a militarised combat against China. In 2016, experts were concerned that any further increase in tensions could spark off World War III. It is apparent from the continued construction that the Chinese government is not inclined to follow the verdict set by the arbitral tribunal. Adherence to verdicts of international tribunals has openly been flouted in the case of Britain, et al versus Germany (1923) in the Kiel Canal case where even though Germany was ordered by the League of Nations to allow passage of the SS Wimbledon, it refused to do so even pursuant to the order of the tribunal.

With the United States and ASEAN voicing empty support, the Philippines largely relies on export to and tourism from China. Using the reliance of the Philippines’ economy on Chinese imports, China quarantined imports from the country, leading to the Philippines once again being subverted. The United Nations held four conferences on the Law of the Sea (UNCLOS) to decide limits and extent of jurisdiction of a coastal nation upon the adjoining sea. Territorial waters extend from three to 12 nautical miles, as declared by the coastal nation, beyond the low tide line. This portion of sea belongs to the declaring nation as part of its territory. Barring the right to innocent passage in accordance with all laws of the costal nation, the territorial waters and all its offshore resources belong exclusively to the coastal nation.

In the determination of coastal waters in bays and creeks or other water bodies, if overlapping claims are made, weightage is given to custom. If islands are located off the coast, they are included within the territory of the country. For example, the islands of Andaman, Nicobar and Lakshadweep extend Indian territorial waters up to the said islands to allow ingress and egress to the territory. Similarly, if China is allowed to claim the islands captured and built by the Chinese government over 500 nautical miles from the coast of mainland China, while encroaching upon the economic zones of the continental shelf, the situation of the SCS will remain grim as ever.

Meanwhile, the exclusive economic zone (EEZ) and the continental shelf — the area of seabed around a large land mass where the sea is relatively shallow compared with the open ocean — claims are claims relating to deep sea mining and or exploitation of other resources. EEZ ensures that even though a country may choose not to extend its territorial waters till the permitted maximum of 12 nautical miles, no other nation is permitted to exploit that territory, except by agreement or custom to the contrary. The concept of the continental shelf is governed by the UN Convention of 1982. As per this convention, the continental shelf extends till the edge of the continental plate or 200 nautical miles, whichever is farther. The states, as per the case of Libya versus Tunisia, that have a claim beyond 200 nautical miles are required to inform the Commission on Limits of the Continental Shelf; any lesser and the same may be assumed.

Considering that China has not clarified their claims and the Philippines are well within their rights to claim the 200 nautical miles of sea extending from their shores, the Philippines had commenced infrastructure and development as well as military patrol in the area which was interrupted by China. The aforesaid acknowledgement of a 200 nautical mile limit of extension to coastal nations is being defeated by China in its annexation of Ayungin Shoal which is 115 nautical miles from the Philippine coastline but 500 nautical miles away from mainland China. Although the United States has yet to sign the convention, most countries now adhere to the UNCLOS III and Part XI of the UNCLOS which came into force on July 28, 1996 as an agreement to pacify the non- signing industrial nations.

When in conflict, the agreement of Part XI shall prevail over the prior UNCLOS III. As regards clashing claims upon water bodies, two main methods of measurement are applied. One is equidistance, which is generally a parallel coastline. But where it is not feasible, the I Sector method is employed. Customs, usages and agreements also play a large role in determining any conflicts on overlap arising thereto. In this scenario however, no amicable settlement seems to be on the horizon since there is no political or military pressure exerted on China to control its belligerence. In the instance that China is permitted to declare its reclaimed reef-naval bases as sovereign territory, a large portion of the SCS would then justifiably be the territorial waters of China, thereby subjecting it to complete Chinese control.

The legal implications of allowing China to create and administer Chinese islands more than 500 miles from its coastline, while encroaching on sovereign territory of other nations, are vast but any recourse by the Philippines is severely limited in practicality. When faced with unequal power, the global justice system is not designed to be executable and as China continues to flout the verdict of this arbitral tribunal as of August 18, 2016, no effective measures of redressal are available to the Philippines. The United States, though not a signatory to the UNCLOS treaty, is now entrusted with singlehandedly providing adequate security in the SCS and therefore is prioritising the tasks and threat level as its own benefits dictate.

Today, China is a permanent member of the UN Security Council, which means that any UN action taken against China could be subject to a veto by China or its allies. And as China’s ‘One Belt One Road’ project kicks off, it is clearly prepared to divert its imports from innumerable other sources, in pursuance of which it has surreptitiously become the loan shark of many South Asian countries. China’s alternative trade routes bypassing the SCS are springing up as the other surrounding countries struggle to keep up. Chinese politics in the region also extend to strong-armed, one-sided deals favouring China and oppressing citizens while feeding corrupt regimes. While the world is shrouded with other greater issues at hand, China has continued its militarisation of the SCS. Moreover, since the invasion of Philippine-patrolled regions, China has faced no repercussions while continuing its methodical and patient annexation of the sea.

Authored by Elaisha Asher