The world watches closely as international tribunal rules on the South China Sea.
Late in 2015, Professor Clive Schofield stood in the Great Hall of the Peace Palace in The Hague providing testimony on one of the most significant international law of the sea cases in decades.
The hearing, before an Arbitration Tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS), was held at the Permanent Court of Arbitration in the Netherlands and was set to rule on maritime disputes in the South China Sea that have been brewing for decades.
Professor Schofield, appearing as an independent expert witness in the case between The Republic of the Philippines and The People’s Republic of China, knew the stakes were high. His testimony had the potential to influence the nature of maritime claims and conflicts for generations to come.
It was a professional highlight for Professor Schofield, Director of Research at The University of Wollongong’s Australian National Centre for Ocean Resources and Security (ANCORS), as one of only two academics in the world asked to serve as independent expert witnesses in the case.
The court ruled against China in what Professor Schofield calls a “sweeping decision” that has reverberated internationally for both the content of the case and its implications for all coastal states.
“China’s historical claims to the South China Sea were, in essence, dismissed,” says Professor Schofield.
The Tribunal also ruled that none of the hotly contested Spratly Islands are entitled to the broad maritime claims that China was attempting to claim. Moreover, the Tribunal found China has caused severe harm to the coral reef environment and violated its obligation to preserve and protect the marine environment through its recent large-scale land reclamation and artificial island building efforts.
It was an emphatic ruling for the Philippines, yet China’s refusal to acknowledge the decision ensures the region will remain a flashpoint for the foreseeable future. The South China Sea remains firmly in the foreground, but on a macro level, the case captures a greater story: the intrigues and interests of geopolitics on the water.
The ocean comprises more than 70 per cent of our planet and is the home of pirates and seafarers, of miniscule islands and a multitude of reefs, of countless creatures, many of which have yet to be discovered, lurking deep beneath the waves. And, as the South China Sea dispute confirms, the debate over which nation can lay claim to which spoils is far from solved, and resources, cannot be neatly divided.
In order to understand the political machinations that take place on our waters, and how the South China Sea became the latest battleground for ocean sovereignty, Professor Schofield says we must first understand the law of the sea.
UNCLOS, which was born out of the Third United Nations Law of the Sea Conference, took nine years to negotiate, finally concluding in 1982. The timeframe reflects the depth of its contents and the high stakes for the nations involved. While it was opened for signature on December 10, 1982, in Montego Bay, Jamaica, it only came into force 12 years later, on November 16, 1994. Known as ‘The Constitution for the Oceans’, UNCLOS provides a framework for the governance of all activities offshore, from maritime rights to the division of resources.
“It is a remarkable document. I find it incredible that you could put over 100 states in a room, and even though it took the best part of a decade of often contentious and painstaking negotiations, they came out with a consensus document.”
For the first time, UNCLOS set out the limits of claims coastal states are able to make through a system of maritime zones. Each coastal state is entitled to territorial waters that stretch 12 nautical miles offshore, and an Exclusive Economic Zone (EEZ), an area in which countries can claim exclusive rights to economic activities such as fishing and drilling, out to 200 nautical miles.
Prior to this, nations generally only claimed jurisdiction over a narrow belt of sea surrounding their coastlines, a practice that dated to the 17th century. Additionally, since the end of the Second World War and advances in drilling technology, countries increasingly claimed rights over seabed areas in order to access oil and gas deposits. The limits of such claims seawards remained uncertain however, leading to concerns over a free-for-all when it came to waters further offshore.
Exploitation of the ocean’s resources was rife, especially when it came to large-scale fishing operations. Disputes also multiplied over ownership of seabed resources, such as oil and minerals.
In his role at ANCORS, Australia’s only interdisciplinary, university-based centre dedicated to ocean law, Professor Schofield is at the forefront of the geographical and legal issues that play out across the world’s waters.
Professor Schofield is brimming with anecdotes that capture the tension between the theory and reality of the law of the sea, and how this plays out on an international stage. Such as the passive aggressive antics that occur when two friendly nations disagree. For example Canada graciously granting the United States permission to enter what they consider to be their waters, weeks after the United States had done so without requesting such authorisation. It is schoolyard politics on a global scale.
The South China Sea verdict, which dominated both national and international media on the day of the ruling, will resonate for decades to come. The impact will not only be felt by the parties involved – China and the Philippines, as well as Vietnam, Malaysia, Brunei, Taiwan, and Indonesia, who also lay claim to parts of the hotly contested waters of the South China Sea – but also by coastal nations around the world.
“Even though other states aren’t bound by the specifics of the ruling, I think over time it will prove to be powerful,” says Professor Schofield, who is also the Leader of the Sustaining Coastal and Marine Zone challenge for UOW’s Global Challenges Program.
“The ruling was surprising for the fact that it was such a comprehensive victory for the Philippines. Usually when you negotiate or go to court, you end up somewhere in the middle. That is not the case here. On all of the main issues at stake, the Tribunal’s decision came down in favour of the Philippines.”
In addition, the tribunal’s ruling that the maritime zones set out under UNCLOS, the Law of the Sea Convention, take precedence over a coastal nation’s claims to historical rights over maritime spaces effectively extinguished China’s claims to areas within the so-called Nine-Dash Line – a discontinuous delineation on maps used by China apparently to indicate their alleged rights over around 80 per cent of the South China Sea.
Australia was among the states closely watching the verdict, particularly as the South China Sea is such a vital region for the nation, which relies on the ocean for 99 per cent of its imports and exports. More than 50 per cent of Australia’s trade passes through the South China Sea, which equates to between approximately US$4.5 – $5 trillion worth of trade per annum. About a third of global oil exports and two thirds of global liquefied natural gas exports use the South China Sea as a thoroughfare.
“It’s a hugely significant body of water from our perspective. We don’t want a conflict, we don’t want to affect trade. We just want everyone to play by the rules in regards to freedom of navigation.”