ENFORCING THE UNENFORCEABLE: HOW TO RELY ON INTERNATIONAL LAW TO CURB CHINA FROM ILLEGAL TERRITORIAL CLAIMS IN THE SOUTH CHINA SEA.

• Author: Herosian, Carly

1. INTRODUCTION

   Marine boundary disputes show an increased presence and importance in recent international jurisprudence. (1) Many of these disputes are rooted in history, as a result of decolonization or nations overcoming war or conflict, and long surpass the birth of the international laws established to resolve them. (2) Recently, such disputes are revived from unilateralist state incentives, including the excavation of valuable natural resources, increased national security, and claims to fishing territories. (3) As competition for these interests increases, more and more states rely on international law and tribunals to determine an equitable resolution through tribunal decisions. (4) Noncompliance of tribunal orders, however, not only jeopardizes a State's law-abiding reputation, but also the overall function of the tribunal and international law to guide disputes towards peaceful resolutions. (5)

   In July 2016, the Permanent Court of Arbitration (PCA) determined that China's claim of sovereignty over vast territory in the South China Sea (SCS) is without legal basis, according to international law. (6) China's claim to the SCS overlaps internationally recognized marine zones within the sovereignty of other bordering countries, one of which is the Philippines. (7) China's aggressively expansive acts to claim territory fueled the Philippines to file suit in the international arbitral tribunal to determine whether China's claim has legal weight. (8)

   Since the PCA's ruling, China publicly delegitimized the award and the tribunal's jurisdiction, and continues expansive activities in the disputed waters, including further construction of artificial island building atop shallow coral reefs. (9) China is bound by the tribunal's award, as the decision is according to obligations set forth under international agreements that China previously ratified. (10) Although the award is unfavorable to China, it should use this decision as a foundation for future negotiations, without further self-branding itself as an outlaw in the region and the international community. (11)

   This Note diverges into the difficulties and potential solutions for resolving marine disputes through international tribunals and arbitration, while comparatively analyzing the longstanding territorial dispute concerning China's claims in the SCS. (12) Part II of this Note begins with a breakdown of the substantive law of the sea, and continues with an overview of relevant international maritime disputes and their outcomes. (13) Part III will discuss the recent PCA award regarding the dispute between the Philippines and China, and state actions since the ruling. (14) Part IV will provide an analysis of the subsequent acts by both the Philippines and China, along with potential options for resolution. (15) Part V of this Note concludes in reinforcing the importance of abiding by international law and arbitration, especially by a dominant world power such as China, to preserve international diplomacy, and avoid unnecessary military conflict and war. (16)

2. HISTORY

   1. The Organization and Legal Foundation of International Tribunals

      International tribunals provide a venue for countries to bring disputes, with the hope and anticipation of an amicable resolution. (17) International tribunals are established through the United Nations directly, or implemented through treaties, such as, the United Nations Convention on the Law of the Sea (UNCLOS). (18) Administrative institutions are also established under the treaties to provide regulation on specific treaty objectives, such as the UNCLOS-created International Seabed Authority (ISA), that regulates the granting of deep-sea exploration licenses. (19)

      The United Nations Charter (U.N. Charter) is the principle foundation for UNCLOS, and accordingly, there are limitations on tribunal rulings by the Permanent Member States on the United Nations Security Council (UNSC). (20) The Permanent Member States, or founding nations of the U.N. Charter, which include China and the United States, hold a privileged right to veto any proposed resolution of a dispute by a tribunal or administrative body developed under U.N. Charter authority. (21) If one of the founding nations does not support a tribunal's decision, that State has the power to independently veto the tribunal's judgment, regardless of an opposing majority shown by other founding nations. (22)

      Although the tribunals established under the U.N. Charter provide the most common venue for states to bring international disputes since World War II, the Hague's adopted Convention for the Pacific Settlement of International Disputes (CPSID) had previously established a forum in 1899, The Permanent Court of Arbitration. (23) The PCA provided the first global forum for states to bring international public law disputes, such as issues of territorial sovereignty or treaty interpretation. (24) PCA cases guided many international principles used in later courts. (25) Greatly underutilized due to the establishment of U.N.-based courts, the PCA underwent revitalization in the 1980s and 1990s. (26) PCA cases increased post-reform due to a new diversification of cases in allowing non-State actors to file, such as nongovernmental private corporations or non-profit organizations, along with party preference, to use a forum with less formality than a court proceeding, yet more ability for negotiation between the parties. (27)

      The PCA rules and procedure emphasize the traditional benefits of dispute settlement through arbitration, allowing for party flexibility, timely resolutions of cases, and more direct communication between parties. (28) As the PCA may serve as a registry for parties to resolve their issues, applicable law varies from international customs to established rules of international treaties, depending upon the underlying body of law governing the dispute. (29) PCA jurisdiction is permitted if all parties ratified the international treaty or convention applicable to the dispute. (30) In addition to the PCA's jurisdictional rules, applicable law may include a compulsory arbitration dispute settlement provision, automatically permitting jurisdiction of an international arbitral tribunal, such as in UNCLOS. (31)

   2. UNCLOS: The Law Governing Our Oceans

      UNCLOS is the international treaty that governs our oceans. (32) It provides the regulatory framework for the use and exploitation of marine resources, along with guidelines to determine state sovereignty rights to adjacent marine zones and navigational rights of the high seas. (33) This framework has evolved and developed over the past century to determine a Member State's control of its adjacent waters, replacing the historic, seventeenth-century concept of ocean ownership based on how far a coastal state's cannons could reach. (34) Along with a regulatory framework, UNCLOS provides four venues for dispute settlement under Article 287 to settle disputes involving UNCLOS law, which include filing a claim in the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), ad hoc arbitration, or before a special arbitral tribunal for disputes with a specific subject matter. (35)

      UNCLOS regulation divides the ocean according to zones, beginning from the shoreline of a Member State, and ending in the high seas or open ocean that is shared by all states as a "common heritage of mankind." (36) A coastal state's rights to each zone makes the ratification of UNCLOS valuable, such as rights to the Territorial Sea and Contiguous Zone, the Exclusive Economic Zone (EEZ), and the Continental Shelf. (37) Within the EEZ, a coastal state has "sovereign rights" to exploit and explore, within two-hundred nautical miles of the baseline, which is generally the shoreline. (38) The coastal state also holds exclusive rights to explore and excavate natural resources on the Continental Shelf, which consists of the "submerged prolongation of the land territory of the coastal State." (39) Specific legal status of features, such as islands or low tide elevations (LTE), within the previously listed zones are also regulated under UNCLOS to reflect legitimate extensions of sovereign rights by the coastal state. (40)

      Although UNCLOS-created zones provide enumerated rights to the coastal states, these rights are not absolute, in that foreign states have the right of innocent passage. (42) These limitations on coastal states are derived from the principle of universal ocean access and freedom of navigation allowed by the international community as a whole. (43) With the narrow exception of claims to historic bays and title within a State's Territorial Sea, the State may not extend sovereignty rights passed the provided maritime zones, whereby the State may be subject to marine delimitation pursuant to UNCLOS law. (44)

   3. Precedent for China's Defiance in the South China Sea and Implications of Dominant States Defying International Law

      1. Circumventing International Tribunal Rulings by Dominant States

         One of the most difficult obstacles to enforcing international law through tribunals is when there is a judgment contrary to a dominant State's position, or more specifically, against a State holding a powerful position in the foundation of the tribunal. (45) When the outcome of a case against a dominant State jeopardizes its national interests, there have been instances of circumventing the judgments through positions at the United Nations. (46)

         1. Implications of the UNSC Veto Power: United States Infiltrating Nicaraguan Harbors

            A historic example of circumventing an international judgment that is contrary to State interests, is by one of the most influential, leading world powers, the United States. (47) Upon the emergence of a new communist party taking control of the Nicaraguan government in the late 1970s, the United States began supporting anti-communist nationalist groups within the country, as an effort...