On 12 July 2016, the Arbitral Tribunal formed under Annex VII of the 1982 United Nations Convention on the Law of the Sea [UNCLOS]Footnote 1 issued its decision on the proceeding brought by the Philippines against China relating to certain activities in the South China Sea.Footnote 2 The Award deals with various important issues relating to law of the sea and the interpretation of UNCLOS, such as the jurisdiction of the Tribunal, the legal status of maritime features, historic rights, and duty to preserve the marine environment. The impact of the Award is felt worldwide, as it would undoubtedly influence other unresolved issues in other parts of the world involving islands and maritime features. This is the case particularly in East Asia, where the Republic of Korea’s (hereafter “Korea”) occupation of Dokdo is challenged by Japan.
Like China and the Philippines, both Korea and Japan are parties to UNCLOS.Footnote 3 Like China, South Korea on 18 April 2006 also made a declaration under paragraph 1 of Article 298 to exclude the issue of maritime boundary delimitation and military activities in the exclusive economic zone [EEZ] from the compulsory dispute settlement mechanism under Section 2 of Part XV of UNCLOS.Footnote 4 Despite the fact that UNCLOS does not deal with any dispute regarding territorial sovereignty, and despite China’s declaration to exclude maritime delimitation from the compulsory dispute settlement mechanism of UNCLOS, the Philippines managed to bring China in front of an arbitral tribunal and successfully obtained a ruling that some of China’s occupation and activities in the South China Sea are unlawful. Thus, can Japan unilaterally bring a case under Part XV of UNCLOS on the issue of Korea’s occupation and activities in Dokdo? This paper will discuss the relevance of the Award on the arbitration case between the Philippines and China, and its relevance to the issue between Japan and Korea regarding Dokdo.
I. THE ARBITRATION CASE BETWEEN THE PHILIPPINES AND CHINA
The arbitration case against the People’s Republic of China (hereinafter “China”) was brought by the government of the Philippines on 22 January 2013, challenging China’s maritime claims and activities in the South China Sea.Footnote 5 The case was brought under the compulsory dispute settlement mechanism under UNCLOS, to which both the Philippines and China are parties.Footnote 6 In addition to challenging the legality of China’s maritime claims, the Philippines questioned whether some features in the South China Sea were entitled to generate an EEZ and continental shelf even though they are so small that it is almost impossible for these features to be inhabited.Footnote 7
Both China and the Philippines claim sovereignty over most of the Spratly Islands in the South China Sea. UNCLOS, however, does not prescribe any procedure for the determination of sovereignty and instead only sets out what maritime zones may be claimed from land territory (including islands), as well as the rights and jurisdiction of states in such maritime zones.Footnote 8 In its Statement of Claim, the Philippines astutely avoids the question of sovereignty and argues that no matter who has sovereignty over the features in the South China Sea, there are still legal questions on whether some of those features are entitled to generate an EEZ and continental shelf.Footnote 9
When the arbitration case was initiated, China asserted that the Tribunal was formed without any legitimacy and thus did not join the proceeding to formally challenge the Tribunal’s jurisdiction over the case.Footnote 10 China had staunchly snubbed the proceeding and refused to participate in any stage of the arbitral process. China’s non-participation, however, did not prevent the arbitral proceedings from continuing and the Tribunal from making an award.Footnote 11 As the 16 December 2014 deadline set by the Tribunal for China to respond to the Philippines’ written submission got closer, China seemed to have changed its mind and decided that it was necessary to make its position known to the Tribunal, in one way or another. On 7 December 2014, exactly ten days before the deadline, China published a Position Paper detailing why they believe the Tribunal lacked jurisdiction to consider the case.Footnote 12
A. The Positions of the Philippines and China on the Arbitration Case
Most of the features that can be considered as “islands” in the Spratly Islands are small, remote, and not capable of sustaining human habitation or economic life of their own.Footnote 13 Thus, they are likely to be classified as “rocks”, and would only be entitled to a 12 nautical mile [M] territorial sea.Footnote 14 This seems to be the position taken by the Philippines in this case, which prevents whoever owns the islands from claiming resources beyond 12 M of each “rock”.Footnote 15 Since most of these “rocks” are located within the 200 M limit of the Philippines’ EEZ entitlement generated from its main islands, the Philippines argues that the only disputed waters are the territorial seas surrounding each rock,Footnote 16 thus leaving a large part of the waters and the sea bed under the exclusive jurisdiction of the Philippines. The Philippines does not recognize the legitimacy of China’s historic claim to the resources in and under the waters inside the nine-dash line, which is the main basis of China’s maritime claim.Footnote 17 The Philippines also claimed that China has violated its rights under Articles 56 and 77 of UNCLOS and that there is a dispute between the parties on the interpretation of Article 121 of UNCLOS and on the legality of China’s claim to rights and jurisdiction inside the nine-dash line.Footnote 18
In the Position Paper, China argues that the case involves sovereignty disputes over land territories, which is not covered by UNCLOS. Even if the Tribunal decided to distinguish the sovereignty dispute from the maritime dispute, China argues that the maritime dispute is so intertwined with the issue of maritime delimitation that it is impossible to settle one without affecting the other.Footnote 19 Since China has made a declaration to exclude any disputes concerning maritime delimitation from the jurisdiction of the UNCLOS dispute settlement regime,Footnote 20 China asserted that the Tribunal was formed without any legitimacy and thus refused to participate in any stage of the arbitral process.Footnote 21 The Philippines argued that such disputes are not excluded by China’s declaration because they did not require the Tribunal to delimit the maritime boundary in the area or to determine which state has sovereignty over the geographic features in the area.Footnote 22
Although China has made it clear that the Position Paper should not be regarded as “China’s acceptance of or its participation in the arbitration”,Footnote 23 it remains the only official statement of China’s position regarding its objection to the jurisdiction of the Tribunal. The Tribunal, having had no response or argument whatsoever to consider from China, seized upon the Position Paper and decided to treat it as “constituting a plea concerning the Tribunal’s jurisdiction”.Footnote 24
B. The Decisions of the Arbitral Tribunal
Since the Tribunal has had formal arguments from both sides—at least on the issue of jurisdiction—it has decided to conduct a hearing to address the objections to jurisdiction as set out in China’s Position Paper.Footnote 25 On 16 March 2015, the Philippines submitted a Supplemental Submission to the Tribunal.Footnote 26 The Supplemental Submission was in response to the request by the Tribunal for additional argument and information regarding both the Tribunal’s jurisdiction and the merits of the Philippines’ claims challenging the lawfulness of China’s claims. The Tribunal gave China until 16 June 2015 to comment on the Philippines’ Supplemental Submission,Footnote 27 but the deadline came and went without any response from China.Footnote 28
On 29 October 2015, the Tribunal issued its Award on Jurisdiction and Admissibility, in which the Tribunal decided that it had jurisdiction to hear the dispute regarding the interpretation of Article 121 of UNCLOS in relation to the status of Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef as “islands” or “rocks”, as well as the status of Mischief Reef, Second Thomas Shoal, Subi Reef, Gaven Reef, and McKennan Reef as low-tide elevations.Footnote 29 The Tribunal also found that it had jurisdiction to consider the disputes concerning China’s alleged interference with the traditional fishing activities of Philippine nationals within the territorial sea of Scarborough Shoal and the protection and preservation of the marine environment at Scarborough Shoal and Second Thomas Shoal, as well as China’s law enforcement activities in the vicinity of Scarborough Shoal.Footnote 30 The Tribunal, however, decided to reserve the decision on its jurisdiction with respect of the rest of the Philippines’ submissions, including the issue of maritime entitlement in the South China Sea, to be considered with the merits of the case.Footnote 31
The Tribunal issued its decision on the merits of the case on 12 July 2016. The decision gave an almost sweeping victory to the Philippines, where the Tribunal declared that China cannot use its nine-dash lineFootnote 32 to claim any rights over maritime resources or any entitlement to maritime zones.Footnote 33 The Tribunal also declared that none of the maritime features in the Spratly Islands are capable in generating an EEZ or continental shelf, effectively categorizing all maritime features there as a “rock” under Article 121(3) of UNCLOS.Footnote 34 Based on these findings, the Tribunal then concluded that China’s activities on and around certain features in the Spratly Islands were in detriment of the Philippines’ rights and not consistent with UNCLOS.Footnote 35
II. RELEVANCE OF THE SOUTH CHINA SEA DECISION TO THE DOKDO SITUATION
Dokdo (Takeshima) is an island consisting of two islets, Dongdo and Seodo, located almost halfway between Korea and Japan in the East Sea (Sea of Japan).Footnote 36 It has a total area of 56 acres and is about 100–174 metres high.Footnote 37 The island has been under continuous Korean administration since 1952,Footnote 38 but this is challenged by Japan.Footnote 39 The issue of Dokdo continues to be a source of tension and a thorn in the bilateral relationship between Korea and Japan. At one point in 1954, Japan even asked Korea to refer the dispute to the International Court of Justice [ICJ], which was rejected by Korea.Footnote 40 Korea does not see any reason why it should bring a matter concerning a territory that it exerts effective control over and that it considers to legally belong to it to the ICJ.Footnote 41 Without Korea’s consent, there is no chance that Japan could challenge Korea’s sovereignty over Dokdo at the ICJ or any other international tribunal. However, the Award of the Arbitral Tribunal in the South China Sea dispute created a precedent on how a state can unilaterally bring another state to a third-party adjudication.
A. The Sovereignty Issue
UNCLOS is clear that it does not deal with any dispute regarding territorial sovereignty. Despite this, the Philippines managed to successfully obtain a ruling that China’s occupation of Mischief Reef is unlawful.Footnote 42 Since the Tribunal accepted that it had jurisdiction to hear the issue regarding China’s occupation of Mischief Reef, questions have been raised on whether such a strategy can be deployed to other unresolved issues in other parts of the world involving islands and maritime features, especially Dokdo.
As was the case with the South China Sea Arbitration, any challenges to the sovereignty over Dokdo cannot be resolved by UNCLOS. So can a similar strategy to that used in the South China Sea dispute be used in the Dokdo situation? For example, can Japan unilaterally bring Korea to arbitration to challenge the latter’s occupation of Dokdo? The short answer is no. The issue regarding “occupation” relates to sovereignty, which as mentioned above is not under the purview of UNCLOS.
So how could the Arbitral Tribunal that was formed under UNCLOS in the South China Sea case rule on the occupation of Mischief Reef? This relates to another claim brought by the Philippines in the case, which argued that Mischief Reef is not an island or rock, but a low-tide elevation. The status of Mischief Reef is important in determining whether the Tribunal has jurisdiction to hear the occupation challenge. If Mischief Reef is deemed to be an island—or even a rock for that matter—it is subject to a sovereignty claim, and thus the Tribunal would not have jurisdiction to hear any challenges on its occupation.Footnote 43 However, in its Award the Tribunal found that Mischief Reef is a low-tide elevation and not a rock or island entitled to any maritime zones.Footnote 44 The consequence of this finding is that Mischief Reef is incapable of appropriation, by occupation or otherwise. Instead, jurisdiction over Mischief Reef lies with the coastal state in whose EEZ or continental shelf those features are located. In this case, the Tribunal ruled that Mischief Reef is located within the Philippines’ EEZ, and thus it is under the jurisdiction of the Philippines.Footnote 45
The situation regarding Dokdo is different from Mischief Reef. Dokdo is a naturally formed land that is above water at high tide, which qualifies it as an island or at least a rock under Article 121 of UNCLOS. Neither Japan nor Korea ever challenged the status of Dokdo as a high-tide feature that can be claimed under international law. Since Dokdo is subject to a sovereignty claim, the sovereignty of Dokdo is not an issue under the purview of UNCLOS. Thus, Korea cannot be forced to go to the ICJ or other international tribunal to justify the legality of its occupation of Dokdo.
B. The Status of Dokdo as a Rock or an Island
The Arbitral Tribunal’s determination in the South China Sea dispute between the Philippines and China included a long-awaited articulation of the distinction between “islands” capable of generating extended maritime claims (that is, EEZ and continental shelf entitlements) and “rocks” which can only generate a 12 M territorial sea. The decision set a high bar for a feature to constitute a “fully-fledged” island capable of generating the full suite of maritime zones.Footnote 46 In particular, the Tribunal determined that there are no islands in the Spratly group in the South China Sea capable of generating an EEZ and continental shelf.Footnote 47 Extension of this logic to Dokdo would likely lead to a conclusion that Dokdo is a rock, which is only entitled to a 12 M territorial sea.
The question is whether the Award in the South China Sea dispute will endure and be influential in future judicial determinations or whether state practice will evolve in a way that is inconsistent with the Award. The Award may either have diminishing influence on future cases as time goes on, or it might be treated as an authoritative ruling that will have enduring effect. If state practice supports the Award then the better legal view is that Dokdo would be treated as a rock. Yet will a future court or tribunal take a broader view of “rock” for features which are close to the mainland? Coastal states typically favour maximizing their maritime jurisdiction by claiming full entitlement for even extremely small, remote, and unpopulated islands. This raises the prospect of state practice being unaffected by the Award.
Whether state practice would follow the jurisprudence of the Award, the South China Sea Arbitration is now the starting point of discussion regarding whether a feature is a rock or an island. The legal status of Dokdo may or may not be a dispute between Korea and Japan. Nevertheless, the approach in the Award, when applied, would seem to lead to a conclusion that Dokdo is a rock.
C. The Delimitation Issue
In the South China Sea Arbitration, China argued that the Tribunal lacked jurisdiction because the questions submitted by the Philippines “would constitute an integral part of maritime delimitation between the two countries”.Footnote 48 Although UNCLOS does contain provisions concerning the delimitation of maritime boundaries, China’s declaration under Article 298 excluded the issue of maritime boundary delimitation from the Tribunal’s jurisdiction.Footnote 49 This is a point that the Philippines were aware of, which was why it did not ask the Tribunal to delimit any maritime boundary between them.Footnote 50 In its Award, the Tribunal made it clear that it would address the Philippines’ claims “only insofar as the two Parties’ respective rights and obligations are not dependent on any maritime boundary or where no delimitation of a boundary would be necessary because the application of the Convention would not lead to any overlap of the two Parties’ respective entitlements”.Footnote 51
Similarly, Korea made a declaration under Article 298 to exclude any disputes relating to maritime delimitation and military activities in the EEZ from the compulsory dispute settlement mechanism under UNCLOS. Hence, any issue regarding maritime delimitation around Dokdo between Korea and Japan cannot be brought under the compulsory dispute settlement mechanism under UNCLOS. However, it is important to note that the characterization of Dokdo as a rock or an island will have consequences for Korea’s claim of maritime jurisdiction around Dokdo, as well as on the effect of Dokdo in any maritime delimitation with Japan. Given Dokdo’s location in the central part of the East Sea (Sea of Japan), its influence in determining the EEZ / continental shelf boundary delimitation between Korea and Japan is significant. Past jurisprudence on maritime delimitation cases and state practice suggest that a modified equidistance line, potentially including an enclaving or semi-enclaving treatment of Dokdo, is a plausible final outcome.
D. Fishing Activities Around Dokdo
One of the claims brought by the Philippines was that China had interfered with the Philippines’ sovereign rights and jurisdiction to exploit the fisheries resources in its EEZ by enacting and enforcing “laws and regulations that purport to extend China’s law enforcement jurisdiction, including over fishing resources, throughout the entire area encompassed by the nine-dash line”.Footnote 52 As part of its Article 298 Declaration, China has excluded any law enforcement activities relating to fisheries in its EEZ from the compulsory dispute settlement mechanism. However, the Tribunal found that China has no EEZ entitlement around the Spratly Islands, leaving no overlap with the Philippines’ EEZ. Hence, China’s law enforcement activities within the Philippines’ EEZ are not excluded from the jurisdiction of the Tribunal.
The situation with Dokdo is slightly different from the South China Sea. Korea’s final position on whether Dokdo is able to generate an EEZ has not yet been officially confirmed due to continuing negotiations. Despite this, there is an overlap of entitlement between an EEZ generated from the Korean Peninsula and the EEZ generated from Japan’s archipelago. Although no EEZ boundaries have been agreed in the area, both countries have reached an agreement on fisheries that theoretically gives both parties equal fishing rights in the area, except within 12 M of Dokdo.Footnote 53 Thus, unless Korea is enforcing its laws in the area designated to Japan based on the agreement, there does not seem to be a way to challenge Korea’s law enforcement activities in its own EEZ as this has been excluded by Korea’s Article 298 Declaration.
The problem, however, is less about fishing enforcement in the EEZ of Korea, and more about the possibility of Japanese fishermen fishing in the sea within 12 M of Dokdo—which has happened in the past.Footnote 54 Article 298 excludes law enforcement activities regarding fisheries in the EEZ, but not in the territorial sea. In theory, any law enforcement issues within the 12 M territorial sea is subject to the compulsory dispute settlement mechanism of UNCLOS. However, in the Dokdo situation, any issue relating to the territorial sea of Dokdo depends on the sovereignty issue over the island, which is not under the purview of UNCLOS. Hence, any court or tribunals formed under UNCLOS would not have jurisdiction to decide on the matter.
E. Preservation of the Marine Environment
Even if Japan cannot challenge the occupation of Dokdo using the dispute settlement mechanism under UNCLOS, can Japan challenge Korea’s activities in the waters surrounding Dokdo? The short answer is yes. However, further examination of the kind of activities that can be challenged is needed. China—as well as Korea—has made a declaration excluding any issue regarding military activities from the compulsory jurisdiction of UNCLOS. In the Mischief Reef situation, however, China has repeatedly stated that the construction activities on the reef are not military in nature. Thus, such construction activities are not excluded from the jurisdiction of the Tribunal.
China’s massive construction projects raise serious concerns about their effects on the marine environment. China claims that the ecological environment of the South China Sea has not been damaged, and that the construction projects on the islands and reefs followed a high standard of environmental protection, taking into full consideration the protection of the ecological environment and fishing resources.Footnote 55 The Philippines challenged this assertion, stating that China’s ongoing reclamation activities “are causing irreversible and widespread damage to the biodiversity and ecological balance to waters”.Footnote 56
This seems to be a valid argument raised by the Philippines. Since three of the features on which China is undertaking reclamation works in the South China Sea are either just inside or just outside the limit of the EEZ claimed by the Philippines, it is reasonable for the Philippines to argue that China has an obligation to notify the Philippines about its reclamation plans, to assess the environmental impact of the reclamation projects, and to share the result of such assessment with the Philippines.Footnote 57 Moreover, since the reefs being reclaimed by China are either being disputed or are located in the middle of an area that is being disputed, China cannot take unilateral action that would permanently change the status of these reefs.Footnote 58
Having established jurisdiction, the Tribunal considered the effect on the marine environment of China’s large-scale land reclamation and construction of artificial islands in the Spratly Islands and found that China has breached its obligation under Article 192 of UNCLOS to protect and preserve the marine environment.Footnote 59 The Tribunal considers that, given the scale and impact of the island-building activities, China was required to prepare an environmental impact assessment [EIA] and to communicate the results of the assessment.Footnote 60 The Tribunal found that China’s failure to communicate the results of the EIAs that it had allegedly conducted to the Tribunal, the Meeting of States Parties to UNCLOS, or any other international organization, was a breach of the obligation of co-operation enshrined under Article 206 of UNCLOS.Footnote 61
The duty to protect and preserve the marine environment is contained in Part XII of UNCLOS, which is applicable to all states with respect to the marine environment in all maritime areas, both inside the national jurisdiction of states and beyond it. In the East Sea (Sea of Japan) context, as a State Party of UNCLOS, Korea is bound by the provisions of Part XII, and has a duty to protect and preserve the marine environment, not only in the waters surrounding Dokdo, but in all maritime areas. In conducting activities in the waters around Dokdo, Korea must ensure that such activities would not harm the marine environment. Following the Award, Korea should also be aware that before conducting any activities around Dokdo that may affect the marine environment, Korea not only has to conduct an EIA, but is also required to share the result of such an assessment, including with Japan. If Korea fails to observe such an obligation, it would be in violation of UNCLOS, and other State Parties of UNCLOS—including Japan—could bring a claim against Korea regarding such a violation. However, if such activities are military in nature, because of Korea’s declaration they would be excluded from the jurisdiction of the compulsory dispute settlement mechanism under UNCLOS.
III. CONCLUSION
The issues regarding Dokdo between Korea and Japan are mainly related to Korea’s sovereignty over Dokdo, which is challenged by Japan, as well as the effect of Dokdo on maritime delimitation between the two countries. If international judicial dispute settlement is sought on both issues at the same time, the case could take a long time to be completed. Nevertheless, the determination of sovereignty over Dokdo without the logical second phase of the delimitation of a maritime boundary is unlikely to resolve the issue between Korea and Japan. It is unlikely, however, that the issues of sovereignty over Dokdo and the maritime delimitation between Korea and Japan will be brought in front of an international judicial dispute settlement body without the consent of both parties. The dispute settlement mechanism under UNCLOS also would not be able to hear the disputes, not only because the issue of sovereignty is outside the scope of the Convention, but also because Korea has expressly excluded maritime delimitation from the application of the dispute settlement mechanism under UNCLOS. Following this, since no international court or tribunal could resolve the sovereignty issue of Dokdo, any issue regarding fishing activities within 12 M of Dokdo would also not be able to be resolved, as this would depend on the determination of which country has sovereignty over Dokdo.
However, the Arbitral Award in the case between the Philippines and China raises concern about the broad jurisdiction being assumed by arbitral tribunals—as well as by the International Tribunal for the Law of the Sea [ITLOS]—something that might lead Korea to engagement in a judicial case “by accident”. For example, any action on the part of Korea in the waters around Dokdo, for instance the construction of an ocean research station proximate to Dokdo as has been contemplated in recent years, could conceivably leave Korea open to involvement in a case brought by Japan under the dispute resolution mechanisms provided for under UNCLOS. This is because such activities on the part of Korea could be construed as matters directly related to the interpretation of aspects of UNCLOS, especially the obligation to protect and preserve the marine environment under Article 192 and the duty to co-operate under Article 206. These questions would therefore not be covered by the exclusions set out in Article 298 of UNCLOS which Korea invoked in its Declaration of 18 April 2006. While any such challenge could not address the question of sovereignty over Dokdo, such a development may be unwelcome from a Korean perspective, for it could potentially lead to a judicial pronouncement not only concerning the lawfulness of activities undertaken by Korea and whether such actions constitute an aggravation of the dispute, but also concerning the status of Dokdo as an island or a rock.
