ENFORCING THE UNENFORCEABLE: HOW TO RELY ON INTERNATIONAL LAW TO CURB CHINA FROM ILLEGAL TERRITORIAL CLAIMS IN THE SOUTH CHINA SEA.
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)
A. 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)
B. 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)
C. 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)
a. 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 to overthrow the newly elected regime. (48) Along with financial support, the United States sought to debilitate the import of arms, and placed mines within Nicaraguan ports and harbors to destroy any incoming merchant ships. (49)
Shortly after 1984, Nicaragua brought a claim against the United States in the ICJ for violating customary international law and intervening in Nicaraguan internal affairs. (50) In 1986, the ICJ ruled in favor of Nicaragua, stating the United States violated international law and Nicaragua's sovereignty. (51) The United States immediately withdrew from the proceedings, claiming the ICJ had no jurisdiction over an "ongoing-armed conflict." (52) The court rejected the United States' objection to jurisdiction, and reinforced the judgment in favor of Nicaragua; however the United States continued to ignore the tribunal proceedings and legitimacy of the final ruling. (53)
Despite the overwhelming objection, the United States exercised its veto power under its UNSC membership privilege to rid the judgment. (54) Not only did U.S. defiance to the judgment threaten relations in the UNSC, but it also questioned the effect and purpose of international law in general. (55) Although the United States never complied with the ICJ ruling, the United States later patched up its relations with Nicaragua in exchange for financial aid. (56) Notwithstanding this quick fix, the United States not complying with the judgment, dampened the State's international reputation, and further, set a dangerous precedent, gravely undermining the legitimacy of peaceful dispute resolution through international law and tribunals. (57) The absolute binding implications of the UNSC veto power imply that it should be reserved for extreme circumstances only; however, States have continued to utilize this privilege through ensuing years. (58)
b. Non-Compliance and Tribunal Rejection by Russia
On September 18, 2013, the Artie Sunrise vessel, operated by the environmental activist group, Greenpeace International, protested upon a "Russian offshore oil production platform," sitting within Russia's EEZ. (59) The vessel flew the Dutch flag, immediately prompting Russian authorities to send a note verbale to the Netherlands, stating intentions to seize the ship and criminally detain the Greenpeace operators. (60) After subsequent unsuccessful attempts to have the individuals released, the Netherlands sought to resolve the dispute by filing a case in the ITLOS and the PCA. (61) The ITLOS tribunal ordered the release of the activists upon a posted bond by the Netherlands, however Russian authorities persisted. (62)
From its inception, Russia objected to jurisdiction of the tribunal. (63) After denying participation of the proceedings, ignoring the tribunals' orders, and detaining the activists for two months, the crew was finally released, but as part of an amnesty. (64) Russia continued to hold the Artie Sunrise vessel for almost a year after the incident occurred, leaving considerable damage to the ship.65 By ignoring the Netherland's note verbale, and later denying any legitimacy of the tribunal's orders, Russia exemplifies the continued pattern of dominant States defying international law when national interests, in this case oil extraction in the Arctic, are at issue. (66)
2. Resolving Territorial Claims Through Compromise
a. India's Compromise to Resolve Territorial Uncertainties with Bangladesh
Successful resolution of maritime disputes by dominant countries against smaller nations is evident, when both States desire to comply for the sake of preserving international order, by compensating self-serving national interests. (67) One of the most successful, recent outcomes of marine delimitation through UNCLOS is between India, Bangladesh, and Myanmar, over territorial sovereignty in the Bay of Bengal. (68) After almost forty years of unresolved negotiations over marine territory, Bangladesh initiated proceedings in the PCA in (2009), seeking a more certain foundation for negotiating with India. (69)
In the Bangladesh-India proceedings, the PCA had to determine a proper terminus between the States, which would provide Bangladesh with legal access to the Continental Shelf and the high seas, without crossing over India or Myanmar's EEZ zones. (70) Following Article 76 of UNCLOS, along with comparing the reasoning in the Bangladesh-Myanmar ITLOS proceeding, the PCA established jurisdiction to delimit the continental shelf where the parties' claims overlapped. (71) Although the out come of the dispute awarded mostly in Bangladesh's favor, India accepted the judgment amicably, seeking to rebuild the State's fractured relationship through compromise. (72) India's compromise to yield parts of its original territorial claims to fairly allow Bangladesh access to the Continental Shelf, gave hope for UNCLOS to serve as a framework over these disputes, along with legitimacy of international and arbitral tribunals to impartially make consistent decisions. (73)
3. Creating a Marine Sanctuary in the Midst of Competing Claims
Before bringing an UNCLOS dispute to a tribunal, States first seek a peaceful resolution by other means, such as by agreement. (74) In the context of a maritime territorial dispute, establishing each State's entitlements can be difficult and longstanding to settle. (75) One strategy to defuse competing claims is by creating a shared, neutral zone of marine conservation. (76)
a. Bordering on the Gulf of Extinction: Jordan, Israel, and the Aqaba Preservation
A prime example of neutralizing territorial claims through marine preservation occurred in the Gulf of Aqaba of the Red Sea, between Jordan and Israel in the 1990s. (77) Both States conflicted over their marine boundary within the Gulf, and accordingly the location and amount of resources to be exploited. (78) Due to the threat of ensuing pollution that would easily diminish the Gulf, both parties agreed to develop a binational marine preservation area within the contested waters to settle their claims. (79)
Not only did establishing a Marine Protected Area (MPA) provide protection to the delicate ecosystem, but it also provided a dispute resolution project, fostering a means of communication and cooperation between the States, and setting grounds for a sustaining relationship. (80) Since implementation of the treaty, both States have respected the established boundaries, and have cemented their relationship through new, subsequent agreements to allocate the SCS's resources without conflict, benefitting both States. (81)
1. Interests at Stake in the S CS: Trade, Fish, Oil, Minerals, and Security
The SCS is an 800,000 sq.-kilometer body of water, semi-enclosed by its bordering countries, holding immense value in shipping routes, fish reserves, and energy resources. (83) The SCS is an established, lucrative, and crucial trade route on a regional and global scale, amounting for one third of all world trade tonnage passing through the Sea.84 Specifically, the SCS acts as a "conduit for more than $5 trillion in maritime trade." (85)
Global energy needs are shipped throughout these waters. (86) In addition, mineral deposits and potential oil reserve estimates within the Sea itself have led many to nickname it "the next Persian Gulf," however these are still estimates and are unconfirmed. (87) Resource competition is not only over potential oil reserves or hydrocarbon natural gas and mineral deposits, but also over fishing territory. (88)
Claims over specific fishing grounds are a major stake involved in the territorial dispute, as there has always been a constant, high demand for fish to support bordering populations and the global market. (89) Environmentally, the SCS holds one of the most diverse marine ecosystems in the world. (90) Devastatingly, due to overfishing, lack of regulation, and the ongoing conflict over territory in the SCS, fish stocks are vastly depleting, with many species on the verge of extinction, leading to the unsustainability of food resources for bordering States. (91) Furthermore, harsh, unregulated fishing practices combined with competing claims over territory, have led to the irreparable destruction of thousands of acres of coral reefs, which are naturally built over many years and provide the fundamental component of sustainable tropical marine ecosystems and fish populations. (92)
2. Successes and Failures to Normalize Relations
Reaching an effective modus vivendi, or agreement, are historically difficult for the SCS bordering countries. (93) The dispute consists of overlapping sovereignty claims over SCS features that include small, barren islands and rocks clustered throughout the Sea, which no claimant has historically, exclusively utilized. (94)
Claimants sought rights over islands, by arguing how their ancestors exclusively fished the areas or if there were remains on the islands from nationals who lived there years prior. (95) The dispute over claims to these island chains began in the (1930)s, but re-emerged in the past two decades due to provocative acts by bordering countries, most prominently by China, as a result of increased security concerns and resources. (96) As the most dominant country in the region, China's claim centers around a map with nine vague, uncoordinated dashes that encircles almost ninety percent of the current SCS, including all features within, which China argues its nationals have historically and exclusively claimed and respected. (97)
Claims over islands began to pick up in the 1970s and 1980s when oil was discovered beneath the Sea, which led to brief, yet violent conflicts, with China dominating the stage. (98) By the mid-19908, China began to move into the Spratly Island chain, where the Philippines were extracting oil and where China would later build surveillance posts atop island features geographically within the Philippines' EEZ zone. (99) Along with building patrol bunkers atop reefs, China began militarizing its commercial fishing fleets and creating a flotilla of "white hull" ships owned by civilian maritime agencies, to extend forceful expansive measures over any interfering ships within the disputed waters. (100)
3. Brief Measures to Ease Tensions
In 2002, under the Association of Southeast Asian Nations (ASEAN), bordering countries established a Declaration of Conduct of Parties in the SCS (DOC) which implemented a non-confrontational standard of conduct regarding claims in the SCS. (101) Shortly thereafter, China disregarded this code of conduct when it continued its expansive measures over features appurtenant to the Philippines. (102) Although there was little direct confrontation during this period, less dominant claimants, such as Vietnam and Malaysia, sought a legal remedy under UNCLOS to establish sovereignty, submitting notes verbales to the UNCLOS-established Commission on the Limits of the Continental Shelf (CLCS). (103)
4. China's Need for Energy and the ISA
In the interim of competing claims over territory in the SCS, China additionally sought out deep-sea exploration licenses through the UNCLOS-established ISA in 2011.104 The fifteen-years contract grants China rights to exploit natural resources on the seafloor, such as sulphide ore deposits, that are harvested as an energy and trade source. (105) Established under UNCLOS law, the ISA's purpose is to regulate the exploitation of deep-sea resources, ensuring sufficient oversight to avoid destruction of the marine environment. (106) China's submission, along with recent endowments to the ISA, reflects the State's interests to sustain a strong relationship with the ISA and to pursue new sources of energy. (107)
5. China s Acts to Dominate in the Philippines' EEZ
In early April 2012, Chinese fishing vessels were found illegally fishing within the Scarborough Shoal area, and were promptly vacated by the Philippine navy. (108) Chinese authorities responsively sent combative ships to confront the Philippines, where there was a standoff between the States until June (2012), when the Chinese took over the shoal and occupied it. (109)
As a result of China's increasingly assertive acts, with the trigger being the stand-off at Scarborough Shoal, the Philippines sought to solve the uncertainties of territorial sovereignty by applying the UNCLOS legal framework before a tribunal. (110) Since occupation of Scarborough Shoal and the Philippines' submission to the PCA, China began digging around its newly occupied islands, destroying coral reefs, uprooting marine life, and pumping the remnants on top of LTEs with concrete, to create landforms over the sea level. (111) It was clear that China sought to build artificial islands to gain sovereignty over the land, create militarized security posts, and acquire rights afforded to land features under UNCLOS. (112)
A. July 2016 PCA Ruling--Philippines vs. China
On January 23, 2013, the Philippines initiated proceedings against China, under Article 287, Annex VII of UNCLOS dispute resolution option of arbitration. (113) The Philippines sought to apply the UNCLOS framework over both States' competing historic claims to the islands and features within the Sea. (114) The proceedings were also initiated to determine whether China's recent expansive construction of artificial islands and extreme fishing techniques are in violation of international law. (115) Since the proceedings began, China publicly objects to the PCA's jurisdiction over the matter, claiming it will not participate in the tribunal or respect any subsequent outcome, however this objection did not bar continuation of the tribunal or its award. (116) China also boasted international support of its rejection of the arbitral proceedings, but the unexpected list of countries backing China, including those such as Afghanistan and Niger, were likely induced to support China's arbitrary position. (117)
1. PCA's Holding
There were three major issues resolved by the PCA's award rendered July 12, 2016, making it a victorious step for the Philippines to regain control over the islands China occupied. (118) The first issue was determining whether China's historic claims to the islands were a legitimate basis for legal rights over the territory. (119) Due to the fact that China's historic claim was based around the vague "nine-dash line map," the PCA held the claim had no legal basis. (120) The PCA reasoned that any historic rights to resources became nonexistent if they were shown to be incompatible with UNCLOS and the established territorial zones afforded to States under the legal framework. (121)
The tribunal next addressed the legal status of the disputed islands, including those in the Spratly Isles and Scarborough Shoal. (122) Following Article 121 of UNCLOS defining an "island" as a "naturally formed area of land, surrounded by water, which is above water at high tide," the tribunal accordingly delegitimized any of the artificial island structures built by China atop of LTEs. (123) The tribunal followed by analyzing China's recent acts of artificial island building and harsh fishing practices, regardless of location, additionally finding such acts in violation of environmental policies under UNCLOS. (124)
2. Post Decision Problems: Issues of Enforceability of the PC A's Award
Days after the PCA's award delegitimized China's historic claims to the disputed islands, Chinese construction continued over the partially completed island in the Spratly Islands, outright disregarding the arbitral tribunal's ruling. (125) China sustains its position that regardless of the PCA's determinations, the SCS dispute over sovereignty claims must be settled with only the nations involved in the dispute and without interference from third parties. (126)
a. Establishing PCA Jurisdiction and Treaty Overlap
China asserts that from its inception, the arbitral tribunal did not have jurisdiction over the dispute, due to the fact that its outcome would determine territorial sovereignty over the disputed islands. (127) Further, Chinese official statements imply that subsequent treaties, including the (2002) DOC, preempt any application of UNCLOS over the issues of territorial sovereignty. (128) Critics argue that China's strategy is to isolate issues of sovereignty within bilateral agreements only, automatically giving China an opportune advantage over any other nation in the region due to China's inherently dominant stance. (129)
b. Post-PCA Philippine and Chinese Interactions
It is reported that China's rejection of the tribunal is reflective of prior defiance by other dominant States throughout history, specifically by the United States and Russia. (130) China could likely seek to entice the Philippines through a buy-out to defuse tensions, by providing much-needed investment in the Philippines in exchange for sovereign rights over the territory. (131) Since the ruling, newly elected Filipino President Duterte met with Chinese President Xi Jinping in Beijing, hinting at initiating bilateral negotiations between the two States. (132) In October 2016, the Philippines publicized the freed access of Scarborough Shoal, where local fisherman were allowed to return, however both States disagree as to exact agreement terminology, implying sovereignty claims are not yet settled. (133)
c. China's Reactions Towards Increased Freedom of Navigation Exercises By Other World Powers
Although China hinted at settlement with the Philippines, China overwhelmingly objected to increased freedom of navigation exercises by other outside States, including predominantly by the United States and Australia. (134) In early January 2017, China seized a U.S. underwater drone to purposefully display its objection to the lawful freedom of navigation exercises, however, it later returned the U.S. property five days later after significant pressure from the U.S. Pentagon. (135)
A. The PCA Holds Proper Jurisdiction Over the Dispute
China's most prominent argument against participating in the PCA proceedings was improper jurisdiction by the tribunal, due to the fact that China did not explicitly agree to participate. (136) Although China does have the right to select a means to settle disputes, it does not have the authority to ignore a claim filed against China in an international court according to UNCLOS. (137)
1. ASEAN DOC Does Not Trump the Application of UNCLOS to the Dispute, But Reinforces It
China further undermined the PCA proceedings by arguing that the ASEAN DOC trumped any application of UNCLOS, and contrarily argued that the Philippines were in breach of the ASEAN agreement when it did not negotiate bi-nationally with only China. (138) China's accusatory statements exemplified the State's tactics to try to defuse objecting to the PCA in the international spotlight, and further showing outright denial of the presence of a conflict at all, by claiming how Chinese sovereignty was "undisputed" in the contested waters. (139)
Although the ASEAN DOC was the most notable agreement to ease tensions in the region, it did not supersede UNCLOS, as it was clearly drafted to reflect UNCLOS-influenced principles. (140) For example, principles such as "exercising self-restraint" in acts that would exacerbate the dispute or disregard for the preservation of the marine environment were expressly included in the DOC. (141) Moreover, the DOC expressly reiterated ASEAN States' commitment to the uphold UNCLOS law in the region. (142) Accordingly, by agreeing to the DOC, China reaffirmed its commitment to UNCLOS law, and therefore UNCLOS compulsory dispute resolution options that may be exercised by Member States, including arbitration. (143) Although China declined to participate or acknowledge the proceedings, under UNCLOS law it was proper for the Philippines and the PCA to continue the case, regardless of China's default. (144)
2. The PCA Properly Exercised Jurisdiction by Expressly Excluding Any Determinations of Sovereignty
To further argue proper jurisdiction by the PCA, the proceedings specifically addressed only the interpretation or application of UNCLOS law, and openly disregarded any express determination of sovereignty over the contested areas. (145) By limiting its award to address certain issues in the dispute, such as the legitimacy of China's historic claim or legal significance of China's artificial islands, the PCA alleviated a significant portion of the long standing uncertainty of the dispute, without ruling on the tense issue of sovereignty. (146)
Although, it may be argued that by delegitimizing China's historic claims, the PCA indirectly addressed that China does not hold sovereign rights in the area, as China's historic claims constituted its sole argument for entitlement. (147) Overall, however, the PCA's rejection of China's historic claims was proper due to the fact that China had not exercised any exclusive control over the contested waters, reflecting the true character of the region being a shared sea by many bordering nations. (148)
B. Russia and the United States Reflect Poor Precedent for China to Respect the PCA's Award
Success of order through international tribunals is highly dependent on the parties' stance in the international community, their national interests at stake, and whether that, balanced against the risk of reputational damage, is worth complying or defying. (149) In comparing the acts of both Russia and the United States, it is evident that dominant, superpower States can use their position to circumvent, or outright defy, international jurisdiction and order when national interests are at stake. (150) This hierarchy of powerful States combined with noncompliance, fractures international law and enforcement. (151)
The defiance of international law and order by the United States in the 1980s and Russia in 2013, set a precedent for China to similarly reject international law when national interests are at stake. (152) As both dominant world powers and UNSC founding members, Russia and the United States set a poor standard for China to follow, as both States openly objected to international law fulfilling its purpose of justice and maintaining order. (153)
China's acts since the PCA's award reflect similarities between how the United States reacted to the ICJ judgment, such as the October 2016 meeting between the Chinese and Filipino president, which hinted at a bilateral settlement likely involving a financial buy-out. (154) China's strategy to buy-out support is not uncommon, as it likely bought support from other poorer nations around the world, for example, to support its position contrary to the PCA award. (155) For this reason, it is imperative for the Philippines to avoid a binational settlement with China, as it will likely lead to the Philippines further jeopardizing its sovereignty in exchange for short term financial gains. (156)
Although the United States used its position on the UNSC to circumvent the ICJ's judgment, China's position on the UNSC is not as impacting in the current dispute, since the Philippines' submitted its claim through the PCA. (157) The PCA is not a judicial organ of the United Nations, and therefore not subject to the UNSC veto. (158) China could block a future judgment, however, if the Philippines submitted a claim to the ICJ, or even ITLOS, which would potentially allow China to exercise its UNSC veto power against any judgment contrary to its position. (159)
China's position on the UNSC, however, could prove to be beneficial to curb China's claims and enforce the PCA's award, through pressure from other UNSC members. (160) The other UNSC founding nations could draft resolutions urging China to comply, as its acts have greatly threatened regional security, which the UNSC is organized to prevent. (161) Although the UNSC resolutions directed towards the United States to comply with the ICJ in the 1980s did not result in compliance, it put immense international pressure on the United States, which later led to financial retribution to Nicaragua. (162)
The major difference between the United States proceedings in the ICJ and the SCS dispute is the geographic significance of the SCS and impact on the international community, as China's control over the Sea will greatly interfere with the trade tonnage flowing through it. (163) China's eagerness for ownership and detrimental impact on the universally used trade route causes great concern for the international community, which should fuel other dominant States to align against and contain China's expansive acts. (164) Although China's interests are fueling its expansion into the sovereignty of other SCS nations and leading it to defy international law, the international community holds a greater interest to stop it, for much of the global economy is dependent on the SCS's established trade route. (165)
C. Enforcing the PCA's Determination Requires Further Action: Solidarity of ASEAN Nations and Collective Pressure Placing China as Outlaw
The PCA ruling was a great victory for the Philippines, as it provided answers according to international law, and created an even playing field to oppose annexation of its marine territory by its dominant neighbor. (166) Although China ignored the PCA's award, the decision will be greatly influential in future deliberations, which must be continued by the Philippines. (167)
1. Creating Leverage Against China: Natural Resources and ISA Exploration Licenses
Although China ignored the PCA's award and continued construction of islands in the SCS, it is key for the Philippines to stand its ground by gaining external support and creating leverage over China's interests. (168) Contrary to the PCA, the ISA is established under UNCLOS authority, and the granting of exploration licenses are to States who are committed to respecting UNCLOS law. (169) One of China's major objectives in this dispute is control over energy sources. (170) Throughout the dispute, China has shown a clear disregard for UNCLOS law, which created an opportunity to argue for suspension of the State's ISA exploration licenses. (171)
After the ruling, there were reports of the Philippines' President, Duterte, and China's President, Xi Jinping, potentially negotiating a joint exploration oil agreement within the contested areas. (172) Forming an exploration partnership with China, without addressing sovereignty issues, is risky, in that it would permit China to exploit resources in Philippine waters and further bolster China's dominance and its claim for ownership. (173)
Instead of discussing binational agreements with China, the Philippines should first mend sovereignty issues with the other remaining bordering countries, in order to create a sense of solidarity and leverage to later negotiate with China. (174) Solidarity through ASEAN would be additionally beneficial, as it is already an established organization promoting peace and security in the region, which China has previously disregarded by violating the DOC. (175) Solidarity of the remaining bordering States, would lead to collectively opposing against China's expansion into the SCS, and more importantly, continue presenting China as an outlaw in the region. (176) Additionally, a joint submission by ASEAN nations would be more persuasive for the ISA to suspend China's exploration licenses. (177)
2. A Collectively Recognized and Organized MPA Over Contested Areas Provides the Most Beneficial and Sustainable Solution to the Dispute
The irreparable damage to the marine environment in the SCS has long been ignored by China, as it continues to disrupt the fragile ecosystems with increased artificial island building following the PCA's award. (178) Damage to the marine environment, especially coral reefs, has jeopardized the food supply relied upon by millions living in the SCS's surrounding nations, which China has disregarded in exchange for strategic control. (179) With the majority of the Filipino diet relying on SCS fisheries, it is imperative for the Philippines to protect the reefs within its EEZ. (180)
Establishing MP As throughout the Philippines' EEZ would provide substantial protection over any remaining undisturbed reefs, however it will be difficult to succeed unilaterally. (181) The Philippines should primarily seek to defuse claims with other SCS nations, and work as a collective through ASEAN to institute MPAs throughout the contested waters. (182) Similarly, the MPA created in the Red Sea by Israel and Jordan required both States to defuse their competing claims, in order to preserve the shared marine environment and its valuable resources, before depletion. (183) Although the peace agreement between Israel and Jordan was aided by the United States as a third party, regulating the MPAs could be successfully facilitated through ASEAN. (184) Organizing through ASEAN would allow for collaboration and solidarity between the SCS nations, further opportunities of sharing the Sea's resources, and multinational support to monitor MPAs throughout the Sea, similar to the collaboration by Israel and Jordan. (185)
The issue remains of China respecting MPAs throughout the SCS, as it shows the greatest disregard for the marine environment and intransient stance on its claims for ownership. (186) Although China may not initially respect MPAs, it would provide a neutral solution to competing claims, and China's acceptance would simultaneously alleviate the reputational damage of rejecting the PCA proceedings and its environmentally destructive island building. (187) To further neutralize tensions, the Philippines should advocate for China to join in efforts to preserve the Sea, and potentially use China's artificial island structures as marine science stations to regulate and oversee nearby MPAs. (188)
The PCA's award was a victorious outcome for the Philippines, and other SCS bordering nations involved in the competing claims over territorial sovereignty in the SCS. (189) Although China has arbitrarily rejected the PCA's award and continued its expansive activities, its defiance of international law will be beneficial for the Philippines to continue its fight for sovereignty, as China is now seen as an outlaw in an international spotlight. (190) It is key for the Philippines to avoid binational negotiations with China, as that will fulfill China's goal of acquiring regional power through directly bargaining with less powerful nations. (191) The way to enforce the PCA's award and halt China's expansion must include support from the international community, through organizations such as the UNSC, and additional consequences placed on China that are diplomatic, rather than monetary. (192)
China's aggression has not only threatened peace and security, but also the marine environment in the SCS, triggering the need for collectively established and regulated MPAs throughout the contested waters. (193) In order to preserve the SCS through MPAs, however, there must be cooperation by China to back down its aggressive and unlawful position to control a Sea that has never been exclusively under its control. (194)
(1.) Pal Jakob Aasen, The Law of Maritime Delimitation and the Russian-Norwegian Maritime Boundary Dispute, Fridtjof Nansen Institute 1, 7 (2010), available at http://Library.arcticportal.org/1624/1/The_Law_0f_Maritime_De limitation_between_Russia_and_Norway.pdf (explaining how marine laws allow for coastal states to claim title to "natural prolongations" of land). See David P. Riesenberg, Recent Jurisprudence Addressing Maritime Delimitation Beyond 200 Nautical Miles from the Coast, Am. Soc. of Intn'l L. (Sept. 22, 2014), https://www.asil. org/insights/volume/18/issue/21/recent-jurisprudence-addressing-maritime-delimitati on-beyond-200#_edn1 (reporting historic developments in marine delimitation cases in recent years). Recent marine delimitation jurisprudence settles new emerging issues, such as determining a coastal state's legal title to areas beyond 200 nautical miles from the coast. Id. Such determination also results in title issues concerning the seabed and subsoil, such as ownership of natural resources like hydrocarbons. Id. See also Nugzar Dundua, Delimitation of Maritime Boundaries Between Adjacent States, United Nations 1-2 (2007), http://www.un.org/depts/los/nippon/unnff_programme_ home/fellows_pages/fellows_papers/dundua_0607_georgia.pdf (stating increase in marine delimitation disputes due to international maritime law). As a result of a revitalized and updated legal framework governing the oceans in the 1980s, the United Nations Convention on the Law of the Sea (UNCLOS), the ocean was divided into marine zones, which granted member states specific rights to the established zones. Id. This "emergence of the new maritime zones" led to a simultaneous increase in importance of marine boundary disputes involving delimitation in contemporary international law. Id. at 2.
(2.) See Thomas Cottier, Equitable Principles of Maritime Boundary Delimitation 479-482 (2015) (stating historic foundation stemming increase in marine disputes). Overcoming colonial dominance has resulted in countries seeking to clarify insecurities. Id. See M. Taylor Fravel, Territorial and Maritime Boundary Disputes in Asia, Oxford Handbook of the International Relations in Asia 2 (2014), http://hdl.handle.net/1721.1/92742 (stating decolonization as cause for boundary disputes). The amalgamation of undefined boundaries, with the destabilizing effects of post-colonization, led to the increase of long-standing and unresolved marine boundary conflicts. Id.
(3.) See Cottier, supra note 2, at 472 (explaining increase in marine delimitation cases resulting from long-standing, unsettled disputes concerning jurisdictional rights over resources). Specifically, some disputes stemmed over "the principle of permanent sovereignty over natural resources, entitlement over space and resources ... [and] the idea that the coastal state has a close relationship to them." Id. See Dundua, supra note 1, at 78 (exploring idea of national security concerns resulting in coastal states seeking to protect maritime rights offshore). The 1945 Truman Proclamation stated, "self-protection compels a coastal nation to keep close watch over activities off its shores...." Id. This concept is still a relevant issue today, with coastal states holding an "instinctive rejection" to other states intruding into their coasts and extracting resources found offshore. Id. The interests of third party states may also be considered by a court faced with a delimitation dispute, if such third state "influence[s] the delimitation line" between two other surrounding states. Id. at 79. The issue of third party state influence is prevalent in seas with many bordering states and numerous islands. Id.
(4.) See John E. Noyes, The International Tribunal for the Law of the Sea, 32 Cornell Int'l L. J. 109, 161 (1998) (discussing how tribunals provide forum for settling international disputes). In the context of adversarial countries with little room for negotiation, international tribunals seek to set out "the contours for further negotiations" and encourage states to be guided by a general framework of resolution, especially while the conflict is ongoing. Id. at 162. See also Preventing and Mitigating Conflicts: Role of the International Courts, United States Institute of Peace (2014), http://www.usip.org/events/preventing-and-mitigating-conflicts-role-of-the-international-courts (stating relied-upon role of international courts to prevent "conflict and settle international disputes").
(5.) See Harold Hongu Koh, Why Do Nations Obey International Law?, 106 Yale L. J. 2599, 2636 (1997) (book review) (explaining state compliance with international law incentivized by avoiding "diminution of status through loss of reputation"). Preserving a law-abiding reputation is one of the driving factors of states complying with international law and order. Id. Among the many benefits of being included in the international community, compliance may also allow states to be included in establishing international policy and regulation. Id. See also Jacob Katz Cogan, Noncompliance and the International Rule of Law, 31 Yale J. Int'l L. 189, 189-91 (2006) (discussing implications of noncompliance of international law). Compliance of the law within a legal society is imminent to the success of that legal system, and "contempt for noncompliance" results in delegitimizing a legal system, because it "fails to uphold its own rules." Id. at 189. Compliance of the law is managed through the authoritative and enforcement capabilities of the legal institution that established the law. Id. at 190. American law, domestically, holds the legal enforcement mechanisms to uphold compliance. Id. International law, however, is "structurally less capable of managing lawmaking and ... enforcement," due to the variations in collaborating governments, and the limited "ability to self-correct and self-enforce" internationally established legal principles. Id. Accordingly, when compared to domestic legal sys tems, international law is a "partially effective system," relying on the obliged states founding international law-making institutions to lead the example of compliance. Id. at 191.
(6.) See In re South China Sea Arbitration, Case No. 2013-19, Certified Award, at 473 (Perm. Ct. Arb. 2016). https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/ PH-CN-20160712-Award.pdf (declaring China's claims to South China Sea (SCS) do not comply with UNCLOS treaty). UNCLOS is the international treaty that the Permanent Court of Arbitration (PCA) follows to determine its jurisdiction and award, as it is the applicable law for maritime disputes between member states. Id. at xiv. The award presented three major groups of violations by China under UNCLOS law. Id. at 473-77. First, the tribunal established that the historic claims to the SCS by China were without legal merit. Id. at 473. The tribunal reasoned that China's territorial claim exceeded entitlement parameters allowed under UNCLOS. Id. Further, the tribunal held that ratification of UNCLOS supersedes any prior historic claims that are inconsistent with its framework. Id. Second, the tribunal determined the marine features utilized for China's artificial island building do not constitute land of legal entitlement under UNCLOS Article 121. Id. at 474. The tribunal concluded the award in declaring that China's aggressive fishing practices and irreparable damage caused by its expansive acts is in violation of UNCLOS Articles 123, 192, 194(1), 194(5), 197, and 206, along with the general obligation of UNCLOS to preserve the marine environment. Id. at 475-76.
(7.) See Rami Ayyub, A Primer On The Complicated Battle For The South China Sea, NPR (Apr. 13, 2016, 12:01 PM), http://www.npr.org/sections/parallels/2016/04/13/ 4727 11435/a-primer-on-the-complicated-battle-for-the-south-china-sea (demonstrating China's predominant claims over territory in SCS contested with other SCS nations). Besides China and the Philippines, the other nations involved in the territorial dispute include Brunei, Taiwan, Malaysia, Indonesia, and Vietnam. Id. The claims by these coastal states overlap, and result in increased tension over resources, islands, and fishing territories. Id. China's claim, however, encompasses almost the entire sea, demonstrating its position as viewing the sea as a "big Chinese lake." Id.
(8.) See infra Part III.A (discussing China's increased tension in contested SCS waters leading Philippines to file claim in PCA).
(9.) See Briefing by XU Hong, Director-General of the Department of Treaty and Law on the South China Sea Arbitration Initiated by the Philippines, Ministry of Foreign Affairs of The People's Republic of China (May 12, 2016), available at http://www.fmprc.gov.cn/mfa_eng/wjbxw/tl364804.shtml (stating Arbitral Tribunal has no jurisdiction over any claims in dispute). Specifically, Xu Hong states how the dispute of territorial sovereignty is beyond the scope of the ruling of law by the arbitral tribunal UNCLOS. Id. See Chun Han Wong, China to Continue Construction on Disputed Islands, Wall St. J. (July 18, 2016, 2:43 PM), available at http:// www.wsj.com/articles/china-flies-military-aircraft-near-scarborough-shoal-1468852659 (discussing China's continued acts of construction, regardless of PCA ruling or international pressure). China has since ignored the ruling, continuing construction. Id.
(10.) See Jerome A. Cohen, Like it or not, UNCLOS arbitration is legally binding for China, East Asia Forum (July 11, 2016), http://www.eastasiaforum.org/?p=51225 (explaining how China's ratification of UNCLOS establishes jurisdiction for PCA). China objected to the tribunal's proceedings arguing that the tribunal does not have the authority to involve "questions of territorial sovereignty and marine delimitation." Id. UNCLOS, however, provides for compulsory dispute settlement options, including an arbitral tribunal, which China assented to when it ratified the Convention. Id. See In re South China Sea Arbitration, Case No. 2013-19, at 471 (declaring agreement obligations subsequently ratified do not preempt UNCLOS). China additionally argued that the 2002 China-ASEAN Declaration on Conduct of the Parties (DOC) in the SCS is an agreement that precludes UNCLOS-provided dispute settlement options; however, the court denied this argument. Id.
(11.) See Donald Rothwell, Cause for Optimism in the South China Sea, East Asia Forum: Economics Politics and Public Policy in east Asia and the Pacific (July 25, 2016), http://www.eastasiaforum.org/2016/07/25/assessing-the-damagethe-south-china-sea-arbitration/ (enforcing importance for countries involved to use arbitral award as platform for future negotiated settlements). See also Paul Sonne & Chun Han Wong, Calls for China to Respect Maritime-Claim Ruling Grow Louder, Wall St. J., available at http://www.wsj.com/articles/calls-for-china-to-respect-mari time-claim-ruling-grow-louder-1465012976 (last updated June 4, 2016) (discussing rejection of tribunal will threaten China with "reputational damage"). By refuting the award and the tribunal's jurisdiction, China is "cutting itself of from the rules-based international order [that] 'is a fabricated concept that doesn't conform to reality, and its purpose is to isolate China."' Id.
(12.) See Jeremy Page, China's Defiance of International Court Has Precedent U.S. Defiance, Wall St. J., available at http://www.wsj.com/articles/chinas-defianceof-international-court-has-precedentu-s- defiance-1467919982 (last updated July 7, 2016) (comparing China's defiance to PCA with other international tribunal cases involving dominant countries). China's defiance to the PCA is reflective of other dominant powers showing noncompliance of international law throughout the twentieth century. Id. Examples of other instances of noncompliance include the United States' noncompliance of an International Court of Justice ruling in favor of Nicaragua, and a case brought by New Zealand against France, leading to France's noncompliance of an international tribunal and ordering an environmental assessment prior to nuclear testing. Id. See also Daniel Fisher, China's Defiance Over South China Sea Shows Limits of International Courts, Forbes (Jul. 12, 2016), available at https:// www.forbes.com/sites/danielfisher/2016/07/12/chinas-defiance-over-south-china-seashows-limits-of-international- courts/#319cfad27841 (highlighting U.S. defiance to international tribunal in 1986 compared to China in SCS).
(13.) See infra Part II (detailing treaty-based rule of law). This section will summarize similar disputes showing refutation to international decisions, including the dispute between Nicaragua and the United States (1984), Russian defiance, generally, and The Bay of Bengal dispute between India, Bangladesh, and Myanmar. Id. Part II concludes with a brief history of China's claims and expansive acts in the SCS. Id.
(14.) See infra Part III (including foundation of PCA's holding and current problems of enforcement occurring since PCA decision).
(15.) See infra Part IV (depicting potential backlash of China refusing to comply with award). This section will additionally analyze the acts of the Philippines since the decision, and if such acts will be contrary to protecting its sovereignty against an ever-expanding China. Id.
(16.) See infra Part V (concluding compliance and negotiation key for any chance of peacefully resolving dispute).
(17.) See History, Permanent Court of Arbitration, https://pca-cpa.org/en/ about/introduction/history/ (last visited Nov. 2, 2016) (outlining history of PCA tribunal and underlying purpose). The PCA Tribunal was established during the Hague Peace Conference. Id. The initiator of the Conference, Czar Nicolas II of Russia, founded the underlying policy of the international tribunal, stating, "with the object of seeking the most objective means of ensuring to all peoples the benefits of a real and lasting peace, and above all, of limiting the progressive development of existing armaments." Id. See also The Tribunal, The International Tribunal for the Law of the Sea, https://www. itlos.org/en/the-tribunal/ (last visited Nov. 8, 2016) (stating foundation of tribunal). The International Tribunal for the Law of the Sea was established under UNCLOS. Id. This judicial body was created as a specialized forum for parties to settle disputes concerning the interpretation and application of UNCLOS. Id. UNCLOS provides the legal framework for rights to the sea, including jurisdictional limitations, tribunal procedure, and dispute settlement options. Id.
(18.) See The Tribunal, supra note 17 (explaining establishment of tribunal through treaty). UNCLOS is the multinational treaty that lays the substratum for international maritime law, and accordingly, procedure of tribunals. The International Tribunal for the Law of the Sea was established through UNCLOS as a means for dispute resolution concerning maritime matters. Id. See also History, International Court of Justice, http://www.icj-cij.org/en/history (last visited Apr. 14, 2017) (stating tribunal established under U.N. Charter). The International Court of Justice is the primary judicial organ established under the U.N. Charter. Id. The International Court of Justice was established in 1946, the same year as the U.N. Charter, and replaced the Permanent Court of International Justice (PCIJ), which was formerly created by the League of Nations in the 1920s. Id. The International Court of Justice was established to be more consistent with the newly created U.N. Charter provisions, and to shift the legal centricity of the court away from the PCIJ's European influence, and towards applicability to other states worldwide, including, most prominently, the United States. Id.
(19.) See About the International Seabed Authority, International Seabed Authority, https://www.isa.org.jm/authority (last visited Nov. 15, 2016) (stating foundation of ISA through UNCLOS treaty). The International Seabed Authority (ISA) was established under the Convention to regulate the exploration and excavation of the seabed and ocean floor. Id. Such areas are outside of marine entitlements afforded to member states of the Convention. Id. The ISA was institutionalized to "organize and control activities" in such areas, particularly involving "administering the resources" found on the sea floor. Id. See L. M. Wedding, et al., Managing Mining of the Deep Seabed, Sei. Mag., Jul. 10, 2015, at 144, available at http://science. sciencemag.org/content/349/6244/144/tab-pdf (explaining ISA regulation over common areas of seabed). Once the UNCLOS zones designating sovereign rights to States end, "[t]he seabed outside of national jurisdictions [called the 'Area' in ... [UNCLOS]] is legally part of the 'common heritage of mankind' and is not subject to direct claims by sovereign states." Id. ISA was formed in part to ensure regulation and longstanding obligations on States to enjoy resource exploitation, but simultaneously protect the environment. Id.
(20.) See The Security Council, United Nations Security Council, http:// www.un.org/en/sc/ (last visited Nov. 15, 2016) (stating foundation of UNSC). Developed under the U.N. Charter, the UNSC is a fifteen-member board, with each member holding one vote. Id. After a decision has been made, each Member State has an obligation to comply. Id. See generally What is the Security Council?, United Nations Security Council, http://www.un.org/en/sc/about/ (last visited Nov. 15, 2016) (explaining overarching principle of UNSC to maintain peace and security). The UNSC was established to provide guidelines for U.N. Member States to settle disputes as soon as possible. Id. Following the underlying principles of the U.N. Charter, UNSC decisions are to "maintain international peace and security" between civilized nations. Id. To fulfill this mandate, the UNSC holds the power to review peace agreements, conduct investigations or mediations, appoint special envoys, issue ceasefires, impose economic sanctions or travels bans, and even dispatch collective military action. Id. See Voting System and Records, United Nations Security Council, http://www.un.org/en/sc/meetings/voting.shtml (last visited Nov. 15, 2016) (describing limitations on tribunals by UNSC Member States). The most significant limitation within the UNSC, however, is that permanent council members have the "right to veto" any resolution established under U.N. auspices. Id.
(21.) See Voting Systems and Records, supra note 20 (explaining veto power allowed by countries who initially created U.N. Charter). The U.N. Charter's founder countries, or "UNSC permanent members", are "China, France, the Union of Soviet Socialist Republics (USSR) ... [(currently the Russian Federation)], the United Kingdom and the United States...." Id. If one of the founder countries does not agree with a decision, they may veto the resolution by only one vote, and the decision will not be approved. Id. This veto privilege may be exercised upon any decision based on U.N. Charter authority, which includes a decision from any international court or tribunal established under the U.N. Charter. Id. See also The Power of the Veto, Global Policy Forum, https://www.globalpolicy.org/security-council/security-coun cil-as-an-institution/the-power-of-the-veto-0-40.html (last visited Apr. 14, 2017) (critiquing UNSC veto power as tool to maintain control over U.N. resolutions). Many critics of the U.N. Charter argue that some originating countries only agreed to membership of the U.N. Charter, so long as they received this veto power. Id. See Changing Patterns in the Use of the Veto in the Security Council, Global Policy Forum, available at https://www.globalpolicy.org/component/content/article/102-tables-andcharts/32810-changing-patterns-in- the-use-of-the-veto-in-the-security-council.html (last visited Apr. 14, 2017) (displaying patterns of vetoes by each U.N. Charter founding nation). The majority of vetoes, since 1946, are by Russia and the United States. Id. Interestingly, China's seat as a founding member of the UNSC was initially held by Taiwan as the "People's Republic of China," during the late 1960s until the early 1970s. Id. After 1972, the People's Republic of China (PRC) held the seat, which represents the current, mainland Chinese government. Id.
(22.) See supra note 21 and accompanying text (explaining procedure of UNSC members exercising veto power). Although a UNSC permanent member can apply the veto unilaterally, remaining permanent members who oppose applying the veto may submit resolutions urging their concerns and objections. Id. Voting Systems and Records, supra note 20 (discussing unilateral impact of use of veto). See infra Part Il.C.l.a (providing example of United States exercising UNSC veto and remaining UNSC members objecting through drafting resolution). For example, in the 1980s, the United States exercised its veto power over an International Court of Justice judgment contrary to the United States' position in a dispute. Id. Remaining permanent UNSC members drafted resolutions, urging the United States to comply with the judgment; however, the United States exercised the UNSC veto regardless. Id. See also Sahar Okhovat, The United Nations Security Council: Its Veto Power and Its Reform 3 (Ctr. of Peace and Conflicts Studies, Working Paper No. 15/1, 2011), available at https://sydney.edu.au/ arts/peace_conflict/docs/working_papers/UNSC_paper.pdf (critiquing veto).
(23.) See United Nations Conference on Trade and Development, Dispute Settlement, at 5-6, UNCTAD/EDM/Misc.232/Add.26 (2003), available at http://unctad.org/ en/docs/ edmmisc232add26_en.pdf [hereinafter Course On Dispute Settlement] (stating PCA as first international forum for dispute resolution). Established in 1899, the PCA was a "precursor" for later courts, such as the International Court of Justice. Id. at 5.
(24.) See id. (describing PCA as first international venue for States to bring disputes).
(25.) See id. (explaining PCA precedent used in later courts). As the first international dispute forum, the PCA exemplified a legal foundation utilized by later-established courts. Id. "Many of the principles laid down in the early PCA cases are still good law today, and are cited by other international tribunals, including the ICJ." Id. See History, supra note 17 (stating PCA as first intergovernmental institution for global dispute resolution).
(26.) See Course On Dispute Settlement, supra note 20, at 6 (discussing how countries predominantly utilized International Court of Justice after creation). The International Court of Justice became a primary forum for the international community, resulting in the PCA being underutilized. Id.
(27.) See id. at 7-8 (discussing PCA revitalization and reform). In the 1990s, the PCA sought to improve functioning and services through reform. Id. PCA reform included convening sets of experts, modernizing its system of dispute settlement with new rules, and providing international law seminars for practitioners to collaborate. Id. The PCA additionally expanded its forum from solely State actions, to allowing private actors admission to the tribunal. Id. at 7. See Christine E. White, Permanent Court of Arbitration, Int'l Jud. Monitor (2009), http://www.judicialmonitor.org/ archive_fall2009/spotlight.html (discussing increase in PCA cases post 1990 reform). In 2009, PCA cases increased to thirty-five, from only five in 2000. Id. This increase is due "to the diversification of the types of cases the PCA administers." Id. Post-reform, the PCA expanded its jurisdiction from primarily State actors to "cases involving public and private parties, states and investors, parties within the same state (intrastate), and non-governmental organizations." Id. The PCA is organized so the parties have the option to elect which arbitrators will hear and decide the case, minimizing parties' risk otherwise present in a traditional tribunal. Id.
(28.) See Perm. Ct. of Arb. Optional R. for Arbitrating Disp. Between Two States, art. 1.1-3 (1992), available at https://pca-cpa.org/wp-content/uploads/ sites/175/2016/01/Optional-Rules-for-Arbitrating-Disputes-between-Two-States_1992. pdf [hereinafter PCA Rules] (providing rules of PCA procedure more flexible compared to traditional court formalities). Article 1.1 permits parties to modify the rules of the proceeding, if both parties submit their agreement in writing. Id. at art. 1.1. Article 4 provides that the parties "shall appoint an agent" for the proceeding, providing the ability for them to choose representation or not. Id. at art. 4. Further, Article 6 and 7 permit the parties to choose their arbitrators, if both parties consent. Id. at art. 6-7. If both parties do not agree, the initiating party may request an appointing authority to step in and appoint an impartial arbitrator suitable to hear the case. Id. at art. 7.2(b). Without a permanent court of judges, PCA cases are decided before a panel of one, three or five arbitrators, who are not required to be members of the PCA, and may be outside experts or other appointed authority chosen by the parties. Id. at Intro. Additionally, Article 23 guarantees a ninety-day time limit for party submissions, accelerating the award process. Id. at art. 23.
(29.) See id. at art. 33.1 (listing applicable authority for PCA cases). Article 33 states the "tribunal shall apply the law chosen by the parties," which includes the agreement or convention underlying the dispute. Id. If there is no provided law by treaty, the tribunal decides
in accordance with international law by applying: (a) [international conventions ...; (b) [international custom, as evidence of general practice accepted as law; (c) [t]he general principles of law recognized by civilized nations; [and] (d) [j]udicial and arbitral decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Id. at art. 33.1.
(30.) See id. at art. 1.1-1.3 (listing scope of PCA authority). Article 1.1 states there is jurisdiction if the parties ratified "a treaty or other agreement" that permits the settlement of disputes to be referred to arbitration, which includes the PCA as an institutionalized arbitral tribunal. Id. Additionally, jurisdiction follows if the parties ratified the underlying convention of the PCA, the Convention for the Pacific Settlement of International Disputes (CPSID). Id.
(31.) See id. at art. 1.1 (stating PCA jurisdiction permissible if applicable agreement includes arbitral tribunal dispute settlement option); United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, art. 287, available at http://www.un. org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (listing available options of procedure for UNCLOS Member States). Article 287 provides that upon ratification of UNCLOS, States may choose from four means for settling disputes arising from the interpretation or application of the Convention: International Tribunal for the Law of the Sea, International Court of Justice, an arbitral tribunal consistent with Annex VII, or a "special arbitral tribunal ... in accordance with Annex VIII for one or more of the categories of disputes specified therein." United Nations Convention on the Law of the Sea, supra, at art. 287. See United Nations Convention on the Law of the Sea, supra note 31, at Annex VII, (listing requirements for ad hoc arbitration under Article 287). Annex VII in UNCLOS, includes thirteen articles that are meant to regulate the arbitral tribunal settlement option provided by Article 287. Id. Annex VIII provides rules of the functioning of the tribunal, such as requiring a five-arbitrator panel, duties of the parties within the dispute, and the handling of expenses. Id. at Annex VII, art. 3(a). Additionally, Article 9 provides that if one party defaults their appearance, the present party "may request the tribunal to continue the proceedings and to make its award." Id. at Annex VII, art. 9. Moreover, "[a]bsence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings." Id.
(32.) See United Nations Convention on the Law of the Sea, supra note 31, at Preamble (declaring UNCLOS as framework governing oceans). UNCLOS was created out of a longstanding need for a codified framework of ocean regulations, for all ratifying nations to follow. Id. Goals of the Convention were to establish regulations with regard to national marine entitlements, "legal order for the seas and oceans," peaceful, equitable, and efficient utilization of marine resources, "and the study, pro tection and preservation of the marine environment...." Id. Establishment of the Convention reiterated the underlying mandate of the United Nations and U.N. Charter, encompassing the importance of "peace, security, cooperation and friendly relations among all nations in conformity with the principles of justice and equal rights...." Id.
(33.) See United Nations Convention on the Law of the Sea, supra note 31, at Contents (listing sections of UNCLOS laws and corresponding subjects). UNCLOS includes navigational rules for ships (merchant vessels, non-commercial ships, government ships), with specific rules considering each type of passage. Id. UNCLOS regulations lay out the division of specific zones of the ocean (the Territorial Sea, Contiguous Zone, Exclusive Economic Zone (EEZ) and Continental Shelf, and the High Seas, the "Area"), providing States' respective rights, entitlements, and limitations within those zones. Id. Protection and preservation of the marine environment are included as obligations for Member States to follow, and noncompliance would render a violation. Id. Additional rules for dispute resolution, revocation of rights, tribunal procedure, excavation of ocean resources, and marine scientific research are included. Id. UNCLOS also creates authority to regulate specific branches of laws, such as ITLOS for the settlement of disputes, and the ISA to regulate the excavation of marine resources. Id.
(34.) See From the Cannon Shot Rule to UNCLOS, Am. U. Wash. Coll. L., http:// wcl.american.libguides.com/c.php?g=563260&p=3877795 (last visited Apr. 14, 2017) (describing evolution from "cannon shot rule" to UNCLOS law). The cannon shot rule was established in the seventeenth century to determine ownership of the sea by the coastal State, and stemmed from the Grotius ideology that coastal States hold jurisdiction over adjacent seas. Id. Similar to the contemporary concerns of states today, there were issues of national security in coastal waters during that time. Id. The concept of the cannon shot rule provided a foundation for current UNCLOS law, such as the territorial sea zone being three nautical miles from the shore. Id. See also supra note 33 and accompanying text (describing UNCLOS zones, specifically territorial zone). The coastal State holds the highest level of entitlement within the territorial zone, where passage by foreign ships is the most protected under UNCLOS law, requiring permission by the coastal State. Id.
(35.) See United Nations Convention on the Law of the Sea, supra note 31 at art. 287 (listing dispute settlement options). Article 287(1) of UNCLOS provides for appropriate jurisdiction, that ratified members may bring a dispute concerning the inter pretation or application of an UNCLOS provision, in four legal international forums: International Tribunal for the Law of the Sea (ITLOS), International Court of Justice (ICJ), ad hoc arbitration, or a before a special arbitral tribunal for disputes with specific subject matter. Id. at art. 287(1). Pursuant to Article 287 of UNCLOS, ratified States have four choices of dispute settlement options, but the majority chooses to settle through ITLOS. Id. See also The Tribunal, supra note 17 (discussing creation of ITLOS). ITLOS is the tribunal specifically created for marine disputes concerning UNCLOS regulations. Id.
(36.) See supra note 33 and accompanying text (listing UNCLOS-established marine zones entitled to Member States); United Nations Convention on the Law of the Sea, at art. 136 (stating bottom of ocean within high seas as "common heritage of mankind").
(37.) See United Nations Convention on the Law of the Sea, supra note 31, at art. 2-4, 33 (defining State rights to territorial sea). The territorial sea is a zone, twelve nautical miles from the shore, described as an "adjacent belt of sea," where a State may exercise full sovereignty rights. Id. at art. 2-4. The territorial sea is within a larger zone, called the Contiguous zone, which gives a State the power to "exercise the control necessary to prevent infringement of its customs, fiscal, immigration or territory ..." Id. at art. 33. The territorial sea is the first and closest zone to the shoreline, giving the coastal state the greatest control over the zone compared to any other zone. Id.
(38.) See United Nations Convention on the Law of the Sea, supra note 31, at art. 55-75 (providing State rights of EEZ). Within the EEZ, States have enumerated rights "for the purpose of exploring and exploiting, conserving and managing the natural resources ... of the waters superjacent to the seabed ... and its subsoil, and ... the production of energy from the water...." Id. at art. 56(1)(a). Additionally, "jurisdiction as provided for in the ... Convention with regard to the establishment and use of artificial islands, installations and structures, marine scientific research, [and] the protection and preservation of the marine environment...." Id. at art. 56(1)(b). Article 57 of UNCLOS provides the breadth of the EEZ extends to a limit of two-hundred nautical miles "from the baselines from which the ... territorial sea is measured." Id. See also supra note 33 and accompanying text (defining "territorial sea" zone under UNCLOS). United Nations Convention on the Law of the Sea, supra note 31, at art. 5-6 (defining baseline under UNCLOS law). The "baseline" from which all the maritime zones are measured, is "the low-water line along the coast," which typically constitutes the shoreline. Id. at art. 5. The presence of islands, or "islands having fringing reefs," the baseline is the "seaward low-water line of the reef," whereby maritime zones are initiated. Id. at art. 6.
(39.) See United Nations Convention on the Law of the Sea, supra, note 31, at art. 76-85 (defining Continental Shelf, and coastal State's rights and limitations). The Continental Shelf is comprised of "the seabed and subsoil of the submarine areas," extending at least two-hundred nautical miles from the shoreline. Id. at art. 76(1). This zone specifically does not include "the deep ocean floor with its oceanic ridges or the subsoil thereof," which is a separate "Area" shared by the international community. Id. at art. 76(3). UNCLOS states that the "Area" is the ocean zone that extends passed 200 nautical miles, passed the coastal state's EEZ, where the State must share the above waters with all States, as excavation in the Area is no longer considered exclusive by the coastal State. Id. at art. 82. Although the coastal State may excavate the subsoil passed its EEZ, contributions of excavating those resources must be shared with the international community. Id. at art. 82(3)-(4). See also Oceans: The Source of Life, United Nations Convention on the Law of the Sea 1 (2002), available at http://www.un.org/depts/los/convention_agreements/convention_20years/ oceanssourceoflife.pdf (stating features of continental shelf and requirement to share resources passed 200 nautical miles); Commission on the Limits of the Continental Shelf (CLCS) The Continental Shelf, U.N. L. of the Sea Div. for Ocean Aff. And the L. of the Sea, http://www.un.org/Depts/los/clcs_new/continental_shelf_descrip tion.htm (last visited Jan. 20, 2017) (defining continental shelf under UNCLOS).
(40.) See United Nations Convention on the Law of the Sea, supra note 31, at art.13, 121 (stating regulation concerning features within maritime zones). Article 121 of UNCLOS specifically addresses the existence of features, differentiating between islands and rocks, and LTEs (low-tide elevations), and whether any hold legal significance entitling it to maritime zones. Id. An island is defined as "a naturally formed area of land, surrounded by water, which is above water at high tide," as opposed to a rock, "which cannot sustain human habitation or economic life" and accordingly may not acquire an EEZ or rights to the continental shelf. Id. at art. 121(1), 121(3). Islands may acquire maritime zones, dependent upon where they are located, and the land surrounding them. Id. at art. 121(1). Similar to rocks, LTEs are defined as "a naturally formed area of land ... surrounded by and above water at low tide but submerged at high tide." Id. at art. 13(1). Article 13 specifically states that LTEs do not have legal significance to acquire rights of a territorial sea, and therefore its State owner holds no entitlement to an EEZ or to the continental shelf. Id. at art. 13(2). Id. at art. 60 (describing non-legal significance of artificial structures). Article 60 also specifically states that "[artificial islands, installations and structures do not possess the status of islands," and have no rights to maritime zones. Id. at art. 60(8).
(41.) See Jay Batongbacal, Arbitration 101: Philippines v. China, Asia Maritime Transparency Initiative (Jan. 21, 2015), https://amti.csis.org/arbitration-101-philip pines-v-china/ (displaying UNCLOS maritime zones diagram). This diagram also shows the differentiation between national and international airspace zones. Id. See also United Nations Convention of the Law of the Sea, supra note 31, at art. 2 (extending sovereignty rights in territorial sea to airspace above it). Rights to the territorial sea extend to the airspace above the territorial sea zone, allowing the coastal State sovereignty rights. Id. at art. 2.
(42.) See United Nations Convention on the Law of the Sea, supra note 31, at art. 19 (defining innocent passage and rights afforded to foreign ships sailing throughout sea). Article 19 defines innocent passage of ships by differentiating between prejudicial and not prejudicial passage. Id. Passage is considered "innocent so long as it is not prejudicial to the peace, good order or security of the coastal State." Id. at art. 19(1). Passage is not "innocent" if the foreign ship shows "any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal state...." Id. at art.19(2). Among other examples, Article 19 also excludes from innocent passage the use of weapons "of any kind", or a showing of malicious acts "aimed at collecting information" jeopardizing the coastal State's security. Id. at art. 19(2)(b)-(c).
(43.) See United Nations Convention on the Law of the Sea, supra note 31, at art. 86-90 (providing limitations on maritime zones according to freedom of high seas). Waters extended passed a coastal State's EEZ are considered the high seas. Id. at art. 86. "[H]igh seas are open to all States, whether coastal or land-locked." Id. at art. 87(1). Rights include "freedom of navigation; ... overflight; ... to lay submarine cables and pipelines, ... to construct artificial islands, ... fishing, ... [and] scientific research." Id. at art. 87(l)(a)-(f). Article 89 emphasizes that "[n)o State may ... subject any part of the high seas to its sovereignty," which includes if a coastal State's continental shelf extends passed its EEZ. Id. at art. 89. See also id. at art. 76-85 (defining Continental Shelf and coastal state's limitations of ownership and use).
(44.) See United Nations Convention on the Law of the Sea, supra note 31, at art. 15 (stating rules regarding delimitation of territorial sea). Out of all provided maritime zones, only in the territorial sea may "historic title or other special circumstances" cause variance of the baseline from which the territorial sea begins. Id. See id. at art. 74, 83 (stating rules of delimitation regarding EEZ and continental shelf). "Delimitation of the exclusive economic zone" and the continental shelf "between States with opposite or adjacent coasts shall be effected by agreement ... in order to achieve an equitable solution," and if "no agreement can be reached," concerned States may result to dispute settlement provisions provided by UNCLOS. Id. at art. 74 (l)-(2).
(45.) See Okhovat, supra note 22, at 3 (discussing implications of veto power). Originating members of the UNSC may exercise their veto power to overcome a judgment or tribunal proceeding that is contrary to national objectives. Id. The veto power is absolute, allowing a founding UNSC member to abolish an international tribunal's judgment. Id.
(46.) See id. (stating UNSC permanent members use veto in accordance with self-interests). The UNSC veto has been exercised in particular cases where UNSC permanent members, which are all dominant States in the international community, have national interests that fuel the decision to veto a decision by a U.N. tribunal that may jeopardize those interests. Id.
(47.) See Page, supra note 12 (discussing example of United States using veto power to rid ICJ judgment).
(48.) See Nicaragua, Understanding the Iran-Contra Affairs, https://www. brown.edu/Research/Understanding_the_Iran_Contra_Affair/n-background.php (last visited Nov. 10, 2016) (stating U.S. security interests in Latin America due to "close proximity"). In the midst of the Cold War, the United States had been fighting to contain communism on a global scale, and especially within nations that were geographically close to its shores. Id. See The Counterrevolutionaries (The Contras), Understanding the Iran-Contra Affairs, https://www.brown.edu/Research/ Understanding_the_Iran_Contra_Affair/n-contrasus.php (last visited Nov. 11, 2016) (discussing U.S. support for opposition of communist Nicaraguan government). At the time, the Regan administration set a mandate of "supporting democratic reform or revolution everywhere." Id. See also Nicaragua, supra (explaining political upheaval of Nicaraguan government and United States objection). In 1979, the Sandinistas socialist party gained control over the Nicaraguan government. Id. As the Sandinistas began aligning the country with its communist neighbor, Cuba, and installing nationalist economic policies, tension and opposition in the country and region grew. Id. The opposition took the form of counterrevolutionaries, or "contras," which became a new receiver of U.S. support, with the objective to dethrone the Sandinistas party. Id.
(49.) See The Counterrevolutionaries (The Contras), supra note 48 (discussing financial and military arms support by United States to contras). The United States supported the contras "by giving them 'money, arms, and equipment' ... with the potential for 'the occasional direct involvement of the United States in supporting individual operations.'" Id. In 1984, the CIA "placed mines in Nicaraguan harbors ... damaging several ships." Id. See also Doyle McManus & Robert C. Toth, Setback for Contras: CIA Mining of Harbors 'a Fiasco,' L.A. Times, (Mar. 5, 1985), available at http://articles.latimes.com/1985-03-05/news/mn-126331_harbor-mining (explaining CIA mining operation and its faults). Although the United States believed mining harbors would deter merchant ships carrying arms, shipments continued. Id. The types of mines used were ineffective, detectible, and easy to relocate. Id. Although the mines did not cause major destruction, the placement of them in the first place was the most significant issue in violating the sovereignty of another State. Id.
(50.) See Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14,115 (June 27) (listing Nicaragua's submissions). Nicaragua claimed that the United States, in "recruiting, training, arming, equipping, financing ... and otherwise encouraging, supporting ... directing military and paramilitary actions in and against Nicaragua ... violated [U.S.] treaty obligations...." Id. [paragraph] 15(a). In response to deploying mines in harbors, the Nicaraguans claimed that the United States infringed upon "the freedom of the high seas and interrupted] peaceful maritime commerce." Id. [paragraph] 15(e).
(51.) See id. [paragraph] 292 (affirming judgment against United States). The United States was ordered to cease all ongoing operations, and pay reparations to the Nicaraguan government. Id. [paragraph] 292.12-15. The court held that the United States violated international customary law to "not violate the sovereignty of another State." Id. [paragraph] 292.5. The court stated that the U.S. deployment of mines destab:lized international maritime commerce within the treaty-recognized sovereignty of Nicaragua. Id. [paragraph] 292.6-8. Although UNCLOS had not yet been ratified by the parties, both States previously assented to the Treaty of Friendship, Commerce and Navigation in 1956. Id. [paragraph] 292.7-12. This treaty provided protection of Nicaraguan maritime territorial sovereignty, which the United States recognized as up to twelve miles from the Nicaraguan coast. Id. See Treaty of Friendship, Commerce and Navigation, U.S.-Nicar., Jan. 21, 1956, No. 5224, 367 U.N.T.S. 4, 4, available at https://treaties.un.org/doc/ publication/UNTS/ Volume%20367/v367.pdf (showing States' intention of cultural and economic partnership through Treaty of Friendship).
(52.) See Paul Lewis, World Court Supports Nicaragua After U.S. Rejected Judges' Role, N. Y. Times (June 28, 1986), http://www.nytimes.com/1986/06/28/world/worldcourt-supports-nicaragua-after-us- rejected-judges-role.html?pagewanted=all&page- wanted=print (stating rejection by ICJ of U.S. jurisdiction objection during "ongoing armed conflict"); Treaty of Friendship, supra note 51, at art. 5 (subjecting treaty signatories to international court jurisdiction). Although at the time, both parties had not ratified UNCLOS, the court exercised compulsory jurisdiction and based its decision on international customary law and prior peacekeeping treaty between the parties, the Treaty of Friendship. Treaty of Friendship, supra note 51, at art. 5. Article V of the treaty provides "[n]ationals ... of either party ... access to the courts of justice ... in all degrees of jurisdiction, both in pursuit and in defense of their rights." Id.
(53.) See Lewis, supra note 52 (summarizing court's ruling, U.S. objection, and issues of judgment enforcement).
(54.) See U.N. SCOR, 2718th mtg., U.N. Doc. S/PV 2718 (Oct. 28, 1986), available at https://undocs.Org/S/PV.2718 (stating U.S. noncompliance of ICJ decision negatively impacts international community). Following the U.S. unconscionable stance against the international court, UNSC members drafted a resolution additionally pushing the United States to comply. Id. at 57. The resolution states how the United States will exercise its veto power. Id. Objections stated that U.S. defiance undermines the U.N. Charter, describing the United States as a super power that "considers it has the right to crush smaller nations." Id. Resolution objections further stated the United States "considers it has the right to set itself up as the sole judge of international relations" and through its veto, "rejects the peaceful settlement of disputes." Id.
(55.) See id. at 58 (questioning what has become of international law). The resolution concluded by asking this pivotal question, after one of its most powerful, if not most powerful, founding nations acts as an outlaw. Id. This act reopened the question of how to "prospect for peace and understanding between civilized countries," which the U.N. Charter originally sought to framework. Id. See supra note 20 and accompanying text (stating principle of peace and security for U.N. auspices to follow).
(56.) See Page, supra note 12 (stating after ignoring judgment, United States later provided foreign aid to Nicaragua).
(57.) See id. (describing U.S. defiance as precedent for noncompliance with international law).
(58.) See Changing Patterns in the Use of the Veto in the Security Council, supra note 21 (displaying continuous use of UNSC vetoes since 1946); see also Okhovat, supra note 22, at 15 (explaining implications of veto power). As a result of the reputational damage naturally following a veto, permanent members seek to minimize its use. Okhovat, supra, at 15. States have used a "pocket veto," or the mere threat of using a veto, to rid of a matter before it is even officially on the UNSC's agenda. Id. at 16. Permanent members also lobby matters instead of using the veto, to avoid being contrary to the decisions of other members. Id. at 15-16. Member States have also shown alliances in exercising vetoes, such as between China and Russia, or the United Kingdom, France, and the United States. Id. at 12-13.
(59.) See Press Release, Permanent Court of Arbitration, Arbitral Tribunal Renders Award on the Merits, PCA Press Release PCA/1444 (Aug. 24, 2015), at 2, available at https://www.pcaeases.com/web/sendAttach/1444 (describing factual overview of dispute Netherlands and Russia over ship's and activists' release). The activist group consisted of thirty individuals of different nationalities, seeking to protest against Russia's oil drilling in the Artie. Id. During the protest, the activists, approaching in inflatable rafts, climbed the oil platform to try and stop the drilling. Id. Russian Coast Guard was able to bring all activists back to the Arctic Sunrise, and "issued repeated orders ... to stop and allow an investigation on board" the vessel. Id. The ship operators denied the Russian Coast Guard consent to enter and investigate the ship. Id.
(60.) See id. (reporting on Netherland's reaction to Russian capture of activists). In the letter to the Netherlands, Russia "described the protest as 'aggressive and provocative' and stated its intentions to seize" the ship. Id. The next day, Russian authorities boarded the ship, seized and searched the vessel, without a response or consent from the Netherlands. Id. Immediately following detention of the Greenpeace activists, an intrastate criminal investigation began. Id. The activists were charged with piracy, but later "requalified as hooliganism," however, they were kept in detention. Id. See also United Nations Convention on the Law of the Sea, supra note 31, at art. 58, 87, 92, 111 (including concept of freedom of navigation throughout UNCLOS framework). tJnder UNCLOS freedom of navigation principles, State vessels are permitted innocent passage through another State's EEZ. Id. at art. 58, 87, 92, 111. If the ship flies its State flag, there is protection from unnecessary intrusion onto the ship from the coastal State, even though the ship is within its EEZ. Id. at art. 92. Although a coastal State may enjoy the exclusivity economically within the EEZ, Article 58 of UNCLOS, limits that right in the context of respecting lawful freedom of operation by ships of other States. Id. at art. 58, 87. Article 111 affords the coastal State the right of hot pursuit in regards to foreign ship, but only in extreme cases of warships and military conflict. Id. at art. 111.
(61.) See The "Arctic Sunrise" Case (Neth. v. Russ.), Case No. 22, Order of Nov. 22, 2013, 1, 2, available at https://www.itlos.org/fileadmin/itlos/documents/cases/ case_no.22/ Order/C22_Ord_22_l l_2013_orig_Eng.pdf (stating Netherlands' claim applicable to jurisdiction by arbitral tribunal). The Netherlands sought to resolve the dispute under UNCLOS Article 287, which provides for arbitration proceedings under Annex VII, when both parties do not agree to a dispute settlement option. Id.
(62.) See United Nations Convention on the Law of the Sea, supra note 31, at 2, 21, 23 (stating provisional claim by Netherlands and ITLOS order to release activists by bond). The Netherlands filed a request for the prescription of provisional measures under UNCLOS art. 290, "concerning the boarding and detention of the vessel Arctic Sunrise in the exclusive economic zone of the Russian Federation and the detention of the persons on board the vessel...." Id. at 2. After considering that Russia's acts were in violation of freedom of navigation, international customary law, and Netherland's sovereignty by seizing a ship flying its flag, the Tribunal ordered the Russian Federation to release the activists immediately upon payment of a EUR3.6 million bond by the Netherlands. Id. at 20, 21, 23.
(63.) See Comment by the Information and Press Department of the Russian Ministry of Foreign Affairs regarding the situation around the Artie Sunrise, Ministry of Foreign Afr. Of the Russ. Fed'n (Oct. 23, 2013, 10:11 AM), http://www.mid.ru/en/ kommentarii_ predstavitelya/-/asset_publisher/MCZ7HQuMdqBY/content/id/91266 (stating Russia's nonparticipation in Artie Sunrise proceedings due to lack of jurisdiction). In response to initiating proceedings by the Netherlands, Russia issued a press release stating it will not participate in the tribunal, because it did not agree to UNCLOS dispute settlement options when it ratified UNCLOS in 1997. Id. Russia claimed this initial objection allows it to not participate, and prosecute the individuals domestically under Russian law, due to the fact that the activists' protests were within Russia's EEZ zones. Id. Russia stated, however, it is still open to settlement, but outside of UNCLOS-provided dispute mechanisms, including international tribunals. Id. See The "Arctic Sunrise" Case, supra note 61, at 12 (ruling on jurisdiction of ITLOS). UNCLOS Article 298 provides an exception to compulsory dispute settlement provisions applicable to Member States. Id. When Russia ratified UNCLOS, it exercised the optional exception under Article 298, whereby it would not be bound by "'decisions with respect to [...] disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction.'" Id. This exception, however, only applies in disputes "concerning marine scientific research and fisheries," which the ITLOS tribunal held was not "at issue in the present case," and therefore the exception did not apply. Id.
(64.) See Andrew E. Kramer, Amnesty by Russians Includes Greenpeace Case, N.Y. Times, (Dec. 24, 2013), available at http://www.nytimes.com/2013/12/25/world/ europe/ russian-amnesty-now-includes-greenpeace-case.html (explaining release of Greenpeace activists due to amnesty by Russian government). The amnesty allowed any criminal proceedings in Russia to be halted, and would allow "non-Russian crew members to leave the country." Id. See Russia Drops first Greenpeace Arctic 30 Case, BBC (Dec. 24, 2013), http://www.bbc.com/news/world-europe-25504016 (explaining series of events leading to release of activists). According to the report, the release of the crew on bail was allowed after two months of imprisonment, and by mid-December, Russian authorities released the activists as part of an amnesty passed by Russian parliament. Id. See Putin Says Greenpeace Group Jailing Should Serve as Lesson, Sputnik News (Dec. 19, 2013), https://sputniknews.com/russia/20131219185727684 Putin-Says-Greenpeace-Group-Jailing-Should-Serve-as-Lesson/ (reporting on Putin's reaction after activists' release). After the activists' release, Russian President Vladimir Putin stated the activists' detainment should be seen as a "lesson" to not interfere with Russian development in the Arctic. Id.
(65.) See Greenpeace Ship Arctic Sunrise Returns from Russia, Deustche Wellie (Oct. 8, 2014), http://dw.eom/p/lCsOL (reporting on return of Arctic Sunrise vessel). Upon return, the Arctic Sunrise "equipment including navigation and communication aids 'disappeared or had been severely damaged.'" Id. The Netherlands immediately repaired the ship; there were no reports of compensatory damages paid by Russia. Id.
(66.) See supra Part II.C.1. (explaining U.S. security interests to prevent Communism led to unlawful acts in Nicaragua); see also Andrew Foxall, What Russia's Treatment of Greenpeace Activists Reveals About Its Arctic Policy, The Atlantic, (Oct. 7, 2013), https://www.theatlantic.com/international/archive/2013/10/what-russia-s-treatment-of-greenpeace-activists- reveals-about-its-arctic-policy/280352/ (reporting on implications of Russia's treatment of activists after capture). Russia's unreasonable acts of detaining the activists as pirates and confiscating the Dutch ship evidences Russia's interests to secure its ability to extract resources in the region without interference, and will use incriminating force against opposition. Foxall, supra. Russia historically viewed much of the Arctic under its control, however since 2000, Russia began a series of self-serving acts to exercise its sovereign rights, such as placing a Russian flag on the seabed in 2007, and later building a nuclear capable missile submarine to patrol the waters. Id. Although Russia compromised with Norway to a marine delimitation in the Barents Sea in 2010, Russia continues to seek control over remaining areas of the Arctic, evidenced by resubmitting a request to the United Nations to extend its rights to the continental shelf by 1.2 million square kilometers in 2014. Id.
(67.) See Harun ur Rashid, India-Bangladesh: UNCLOS and the Sea Boundary Dispute, Institute of Peace and Conflict Studies, (July 14, 2014), http:// www.ipcs. org/comm_select.php?articleNo=4557 (discussing successful maritime delimitation example where dominant State compromised self-interest). In the below example, the more powerful State in the dispute, India, compromised a section of its initial claim to territory, to settle a dispute which had caused years of uncertainty and tension. Id.
(68.) See id. (characterizing India-Bangladesh resolution as victory for international law). The territorial dispute had emerged in the 1970s between the countries, out of access rights to the continental shelf and open ocean. Id. Bangladesh's geographic position was limited compared to India's lengthier coastline, whereby Bangladesh did not have lawful access to the continental shelf and open ocean due to impeding EEZ zones. Id.
(69.) See id (detailing lengthy history of dispute). In the early 1970s, Bangladesh sought to resolve the dispute through international arbitration, but India rejected this proposal. Id. India preferred to settle through binational relations, and avoid judgment by an impartial third party. Id. Negotiation talks continued, however a resolution was not reached, due to the fact that both States could not "resolve the differences ... [in] methods of delimiting the boundary between the two sides...." Id. Upon ratification of UNCLOS by India (1995) and Bangladesh (2001), both parties became bound by its framework, and were able to exercise UNCLOS dispute settlement options, whereby Bangladesh initiated proceedings through arbitration. Id. See supra note 35 and accompanying text (explaining dispute settlement means under Article 287 of UNCLOS); Naomi Burke, Annex VII Arbitral Tribunal Delimits Maritime Boundary Between Bangladesh and India in the Bay of Bengal, The Am. Soc'y of Int'l L., (Sept. 22, 2014), https://www.asil.org/insights/volume/18/issue/20/ annex-vii-arbitral-tribunal-delimits-maritime-boundary-between (stating Bangladesh initiated proceedings as result of uncertainty and failed negotiations). Simultaneously, Bangladesh initiated PCA proceedings with its eastern neighbor, Myanmar, with identical objectives, however the case was transferred to ITLOS tribunal with consent of both parties. Burke, supra.
(70.) See Rashid, supra note 68 (explaining "landlocked" geographic position of Bangladesh without determination of legal access to continental shelf). Geographically, without a determination of rights to the continental shelf, Bangladesh would be "landlocked" by having to cross India and Myanmar's EEZ zones illegally to reach the open ocean. Id.
(71.) See Burke, supra note 69 (outlining party submissions by India and Bangladesh in PCA proceeding). Party submissions to the tribunal included overlapping claims, both in violation of UNCLOS. Id. India initially submitted claims to areas beyond its EEZ zone, which Bangladesh quickly refuted. Id. Bangladesh's submission included drawing a territorial baseline that India refuted under Article 7 of UNCLOS, which requires baselines to be straight. Id. To resolve the dispute fairly and justly, the PCA had to determine the proper equidistance line between the two countries. Id. India sought to adjust the equidistance line by claiming sovereignty of by LTEs; however, the arbitral tribunal, in following ITLOS reasoning in the Myanmar proceedings, refuted the use of an LTE as a geographic base point to determine territorial rights. Id. LTEs are claimed as "islands" by countries seeking to expand territorial sovereignty by establishing UNCLOS marine zones around the LTE. Id. The PCA also did not accept instability of the coastline, following the ITLOS tribunal's determination, due to rising sea levels, as a basis in its determination of terminus to establish territorial rights. Id. See United Nations Convention on the Law of the Sea, supra note 31, at art. 15 (providing determinants of establishing proper baseline between two States opposite or adjacent). The equidistance line establishes the maritime border between adjacent State territories. Id. It is drawn according to equal distances between each State. Id. See also supra note 40 and accompanying text (describing legal status of LTEs). LTE's are submerged elevations of the sea floor during high tide, but emerge during low tide. Id. at art. 13. Th ey are not considered islands, holding legal significance or sovereignty rights, under UNCLOS law. Id.
(72.) See Rashid, supra note 35 (declaring India sought to "enhance goodwill" with Bangladesh by compliance of judgment). The outcome of
the judgment led to Bangladesh receiving 76% of the initially disputed area, and 24% to India. Id. For international law, this amicable and peaceful resolution was a "victory for fairness and justice." Id. By utilizing UNCLOS dispute options, and accepting order according to UNCLOS, both parties ultimately sought to resolve their dispute without further uncertainty, and valued the importance of international law. Id.
(73.) See supra note 71 and accompanying text (describing consistency and cooperation between ITLOS and PCA tribunals applying UNCLOS). Although the PCA and ITLOS tribunals dealt with the same issues, they were able to base their decision consistently, relying on the UNCLOS framework and similar reasoning. Id. See Burke, supra note 69 (describing successful cooperation between two tribunals). As a result of the successful resolution, "[tjhe [PCA] award thus adds weight to the ITLOS decision regarding the competence of international courts and tribunals to delimit outer continental shelf boundaries." Id.
(74.) See United Nations Convention on the Law of the Sea, supra note 31, at art. 280 (stating parties may settle disputes through UNCLOS, or through own peaceful means). See id. at art. 281 (providing UNCLOS dispute resolution options upon unresolved disagreement by Member States). UNCLOS dispute settlement options are triggered when parties cannot first establish an equitable arrangement between them. Id.
(75.) See supra Part II.C.2.a (describing dispute in Bay of Bengal and final resolution by application of UNCLOS through international tribunals).
(76.) See Marine Peace Parks: Establishing Transboundary MPAs to Improve International Relations and Conservation, Marine Peace Parks (School of Marine Affairs, U. Wash., Seattle, W.A.), Apr. 2008, at 1, available at https://mpanews.open channels.org/sites/default/files/mpanews/archive/MPA95.pdf (stating marine peace parks as way to bridge interrelations between neighbor States). Marine Protected Areas (MPA) provide a means for cooperation between States, creating a common goal of preservation and conservation of shared waters. Id. MPAs are defined as "transboundary protected areas that are formally dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, and to the promotion of peace and cooperation." Id. MPAs create opportunities for States with a history of unresolved tension, where they may be "deeply divided over economic, social, [or] environmental ... interests," whereby there is room for shared regulation of resources "so that their rightful owners can benefit from them," and the environment from which they are derived is simultaneously preserved. Id. See Executive Summary, The Mediterranean Science Commission, at 8 (2010) available at http://ciesm.org/online/monographs/41/WM_41_07_23.pdf (describing concept of peace parks founded as form of defusing disputes). Terrestrial peace parks were first introduced as a way to neutralize "strained relations" between States with a history of "border disputes and conflicts ... still unresolved." Id. Establishment of a peace park provides adversarial States with a common goal for environment preservation and the equal distribution of resources. Id. States may "optimize conservation of large areas" through their mutual understanding from joint management, training, and regulation. Id. MPAs are typically within small, isolated locations, which limit their effectiveness on preserving the marine environment, due to the fact that many organisms rely on migration or dispersal spawning methods, to survive, breed, and flourish. Id. at 8-9.
(77.) See Jordan-Israel Peace Treaty: A Beacon of Stability, Opportunity and Hope, AI PAC Memo (The Am. Isr. Pub. Aff. Comm., Washington, D.C.), Oct. 26, 2015, at 1 (explaining background of dispute). Prior to signing a bilateral agreement in 1994, Jordan and Israel endured forty-six years of conflict between them, including disputes over military staging areas, and boundaries over land, water, and airspace. Id. Compromise was key in settling territorial claims, whereby, for example, Israel recognized Jordanian sovereignty "over 115 square miles of disputed land" in exchange for Jordan to permit leasing some of the land to Israeli farmers. Id. Along with establishing a commitment to peace, determining the shared ownership, responsibility, and equidistance line within the Gulf of Aqaba was seen as a major accomplishment, as it provided grounds for further irrigation projects to support both State populations. Id. See Isabel Kershner, A Rare Middle East Agreement, on Water, N.Y. Times, Dec. 9, 2013 (describing 2015 irrigation project between Israel and Jordan as result of 1994 peace treaty).
(78.) See Marine Peace Parks: Establishing Transboundary MP As to Improve International Relations and Conservation, supra note 76 (describing geographic position of Gulf of Aqaba). The Red Sea is a semi-enclosed sea flowing from the Arabian Sea, with one of its Northern two ends sitting in between both States. Id. This end is called the Gulf of Aqaba, where both States share a common border. Id. The Gulf is home to an array of fragile coral ecosystems that, due to the narrow shape of the body of water, are easily susceptible to destruction by pollution if unprotected. Id. This plentiful ecosystem provided both countries with touristic attractions, fisheries, and wealthy oil and mineral deposits, however there was no regulation on the sharing of these resources. Id. See Lawrence Susskind and Shafiqul Islam, Water Diplomacy: Creating Value and Building Trust in Transboundary Water Negotiations, Sci. & Diplomacy, Sept. 2012, at 1, available at http://www.sciencediplomacy.org/files/water_ diplomacy_science_diplomacy.pdf (associating States' conflict with war over water resources). As both States continued to extract resources from the shared Sea between them without limits, tensions continued to build. Id. Increased shipping in the Gulf also fueled concerns. Id. See also Peter Mackelworth, Peace Parks and Transboundary Initiatives: Implications for Marine Conservation and Spatial Planning, 5 J. of the Soc'y for Conservation Biology 90, 90-95 (2012), available at http://on linelibrary.wiley.com/doi/10.1111/j.1755-263X.2012.00223.x/epdf (describing environmental trigger leading to agreement between States). Increased shipping in the Gulf lead to continuous stress on the environment. Id. As a result of environment deprivation, there were further risks of "undermin[ing] tourism development," which prompted the States to take steps to jointly preserve the area. Id. at 92.
(79.) See Water Diplomacy, supra note 78 (describing regulation of water resources as incentive for treaty); see supra note 78 and accompanying text (stating risk of pollution as incentive to establish MPA); see Israel-Jordan: Peace Treaty, Isr.-Jordan, Jan. 18, 1995, 34 I.L.M 43, art. 3.7 (1995) (outlining treaty commitments for marine boundary in Gulf of Aqaba). In the 1995 Treaty of Peace, both States committed to determining a marine boundary through negotiations to conclude within nine months of treaty ratification. Israel-Jordon: Peace Treaty, supra. Within the committed time frame, and with the assistance of a joint team of experts from both States and the United States, marine boundary coordinates were implemented under a subsequent agreement, ratified in January 1996. Id. See also Marine Boundary Agreement, Isr.-Jordan, Jan. 18, 1996, DOALOS/OLA, at 1 available at http://www.un.org/depts/ los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/ISR-JORl 996MB. PDF (stating environmental commitment on Israel and Jordan through agreement). See also OECD Environmental Performance Reviews: Israel 2011, 85 (2011) (describing intentions of Israel-Jordan marine boundary agreement). The agreement "called on the parties to 'collaborate in research efforts ... in implementing comparable policies and regulations.'" Id.
(80.) See OECD Environmental Performance Reviews: Israel 2011, at 4 (stating goal of MPA project to foster future cooperation and collaboration between two States). The project outlines obligations by each State for long-term research and monitoring goals, along with combined effort of educational training programs for effective management. Id. at 3. Funding is shared by both States, with additional support from sponsors, such as World Bank. Id. at 2.
(81.) See Kershner, supra note 77, at 1,3 (discussing subsequent agreement in 2013 concerning new fresh water desalination plant from Red Sea). The 1994 laid a foundation of future projects, including joint construction of a new desalination plant, to provide a new water source and replenish the Dead Sea. Id. Funding and sponsorship is through the World Bank, and other donor countries and organizations. Id.
(82.) South China Sea Verdict, Wall St. J., (July 12, 2016, 1:30 PM), available at http://www.wsj.com/articles/south-china-sea-verdict-1468343029 (presenting map of SCS dispute). The red dashed line is China's infamous "nine-dash line map," representing China's massive claim for ownership within the inside of the red lines. Id. It is apparent how close China's claim to the SCS is to the Philippines' coast. Id.
(83.) See South China Sea, U.S. Energy Information Administration (Feb. 7, 2013), available at https://www.eia.gov/beta/international/analysis_includes/regions_of_interest/South_China_Sea/south_china_sea.pdf (describing SCS as "critical world trade route" and holder of abundance of resource reserves). The SCS provides a key marine link for trade. Id. "The South China Sea is a critical world trade route and a potential source of hydrocarbons ... with competing claims of ownership over the sea and its resources." Id. at 1. See Scott Snyder et al., Confidence Building Measures in the South China Sea, Pacific Forum CSIS NO. 2-01 (Aug. 2001), at 3, available at https://csis-prod.s3.amazonaws. com/s3fs-public/legacy_files/files/publication/ issuesinsightsv01n02.pdf (discussing geographic significance of SCS); See Snyder et al., supra note 83, at 3-4 (stating SCS as established energy trade route).
(84.) See id. (describing worldwide shipping route through SCS). The shipping route through the SCS links Northeast Asia and the Western Pacific to Europe, the Middle East, and the Indian Ocean. Id. It is reported that over half of all global shipping tonnage sail through the Sea each year, emphasizing its critical importance, and fueling claims for control by bordering countries. Id.
(85.) See Hannah Beech, The Environment is the Silent Casualty of Beijing's Ambitions in the South China Sea, Time, (June 1, 2016), available at http://time.com/ 4353292/south-china-sea-environment-destruction-coral-giant-clams/ (describing SCS as "conduit for more than $5 trillion in maritime trade ...").
(86.) See Snyder et al., supra note 83, at 4 (stating energy tonnage shipped throughout SCS and dependent countries). Over 80% of oil supplied to Northern Asian countries are shipped through the SCS. Id. Japan, South Korea, and Taiwan rely on oil shipments through the SCS, to and from the Middle East. Id. Two-thirds of the world's overall trade of liquefied natural gas is also shipped through the SCS. Id. See The South China Sea is an Important World Energy Trade Route, U.S. Energy Information Administration (Apr. 4, 2013), http://www.eia.gov/ todayinenergy/detail.php?id=10671 (describing SCS as key "world energy trade route"). Besides gas and oil, coal is also shipped globally through the SCS from Australia and Indonesia, with big purchasers including China, Japan, and India. Id.
(87.) See Will Rogers, Beijing's South China Sea Gamble, The Diplomat (Feb. 4, 2012), http://thediplomat.com/2012/02/beijings-south-china-sea-gamble/ (stating SCS described as "next Persian Gulf" due to potential resource deposits); South China Sea, supra note 83 (highlighting SCS potential resource reserves). Although exact estimates of oil reserves are uncertain due to the ongoing dispute over territorial sovereignty, the United States estimates the SCS contains "11 billion barrels of oil and 190 trillion cubic feet of natural gas in proved and probable reserves." South China Sea, supra note 83, at 2. Oil and hydrocarbon estimates may be greater, however, as not areas have been examined. Id. In the Spratly Islands territory, natural gas was discovered in the 1970s by the Philippines, however due to Chinese aggression in these waters, "further development" halted. Id. See also Beech, supra note 85 (stating uncertainty in natural resource reserve estimates). The estimates reported have not been definitely confirmed throughout the SCS. Id. "While the South China Sea's underwater oil and natural-gas deposits are most commonly listed among the waterway's riches, no one knows how deep these reserves are nor how easily accessible they may be." Id.
(88.) See Michael Fabinyi, China and the South China Sea Resource Grab, The Diplomat (Feb. 22, 2015), http://thediplomat.com/2015/02/china-and-the-southchina-sea-resource-grab/ (explaining resource competition over natural gas, but equally over fisheries). Trade in "high-value fisheries" caught in SCS waters, such as the tropical reef fish trade, is greatly invested by private Chinese companies. Id. The Philippines rely on fish stocks to feed its population, but also as revenue to export elsewhere, including China. Id. Regional State practices, however, are "unsustainable and unregulated and provide limited economic benefit to the Philippines." Id.
(89.) See Snyder supra note 84 at xii (stating SCS provides "80% of Philippine diet"). The SCS provides 25% of the protein for 500 million people living in SCS bordering countries. Id.
(90.) See Jackie Northam, One Result of China's Buildup in South China Sea: Environmental Havoc, NPR (Sept. 1, 2016, 9:13 AM), available at http://www.npr. org/ sections/parallels/2016/09/01/491395715/one-result-of-chinas-buildup-in-south-chinasea-environmental-havoc (quoting Professor John McManus stating SCS holds one of "world's most biodiverse regions"). McManus distinguishes the seventy species of coral, fish, and invertebrates in the Caribbean and Hawaii, compared to over 400 native species found in the SCS. Id. The SCS fish stocks have historically provided food for its bordering nations, and SCS reefs and mangroves provide special breeding and spawning grounds for marine life. Id.
(91.) See Northam, supra note 90 (reporting on SCS native giant clam species now declared vulnerable species). Poaching tactics of giant clams by Chinese fishermen include breaking apart coral reefs with boat propellers to easily extract the clams. Id. Additionally, within the dispute to claim new territory, the Chinese have led ships to dredge through living coral and dump the sand atop LTEs with concrete, such as in the Spratly Islands, to turn them into artificial land structures able to support construction building. Id. Both sources of dredging have led to great increase in degradation and extinction of coral and marine life throughout the SCS. Id. Diminishing coral havens deplete areas for fish to live, resulting in irreparable damage over the already overexploited fish populations. Id. See also Snyder et al., supra note 84 at xii (stating 2008 figures on degradation of SCS marine features harming fish populations). It is reported that mangrove fish nursery areas have declined by two-thirds, and over "80 percent of the region's coral reefs are at risk" by human activity. Id. at 5. See also Adam Greer, The South China Sea is Really a Fishery Dispute, The Dip lomat, (July 20, 2016), http://thediplomat.com/2016/07/the-south-china-sea-is-really-a -fishery-dispute/ (listing exploitation percentages of SCS fish stocks). As of 2008, around 25% of fishery stocks have collapsed, 25% were over-exploited, and 50% were fully exploited. Id. The degradation and overfishing of marine life led fishermen to seek out new territory to find food, greatly contributing to overlapping sovereignty claims. Id. See Northam, supra note 90 (discussing UNCLOS environmental obligations for Member States). UNCLOS law provides underlying obligations to "preserve and protect fragile ecosystems," which the Chinese have greatly disregarded in fishing practices and their pursuit of claims over new territory. Id. See also United Nations Convention on the Law of the Sea, supra note 31, at art. 194,197,198 (providing duties on states to preserve marine environment). UNCLOS regulation places duties on states to take "all measures ... necessary to prevent, reduce and control pollution of the marine environment from any source ..." and "to ensure that [their] activities ... are conducted as not to cause damage by pollution...." Id. at art. 194(l)-(2). Further, Article 194 provides that state measures are "necessary to protect and preserve rare or fragile ecosystems, as well as the habitat of depleted, threatened, or endangered species [...]" Id. State measures to preserve the environment are meant to involve interstate cooperation and joint effort. Id. at art. 197-198. States are under the obligation to cooperate for the sake of establishing marine preservation standards and procedures, and to provide prompt notice to other states regarding potential environmental hazards. Id.
(92.) See Oliver Holmes, South China Sea Images Reveal Impact on Coral of Beijing's Military Bases, The Guardian (Sept. 17, 2015), https://www.theguardian.com/ world/ng-interactive/2015/sep/17/south-china-sea-images-reveal-impact-on-coral-ofbeijings-military-bases (reporting immense destruction of coral ecosystems due to SCS dispute). It was reported that as a result of competing territorial claims "[c]oral has been drowned" due to cement and sediment used in China's construction of artificial islands. Id. The dying corals will later begin to rot, which will result in very low oxygen levels, "preventing any fish from resettling." Id. Along with the SCS destruction being labeled as "irrecoverable and irreplaceable," Marine biologist, Professor John McManus, further stated, "the loss of thousands of acres of reef in recent years constitutes the quickest rate of permanent loss of coral reef area in human history." Id. See Jay Batongbacal, Environmental Aggression in the South China Sea, Asia Maritime Transparency Initiative (May 7, 2015), https://amti.csis.org/environmental-aggression-in-the-south-china-sea/ (discussing environmentally destructive implications of SCS dispute on coral reefs). Due to China's claims over territory and expansive acts, the resulting destruction of coral reefs have led to the deprivation of "precious breeding grounds and habitats," and an overall impairment in the "sustainability of the marine environment" in the SCS. Id.
(93.) See Batongbacal, supra note 41 (stating longstanding "territorial and maritime issues" in SCS since 1930s).
(94.) See Limits in the Seas Report No. 143, Office of Ocean and Polar Affairs, Bureau of Oceans and Int'l Envtl. and Sci. Aff., U.S. Dep't of State 4 (2014), available at http://www.state.gov/documents/organization/234936.pdf (describing geography and respective claims of SCS islands). The three major archipelagos in dispute are the Paracel Islands (in between China and Vietnam), the Spratly islands (within the Philippines' EEZ zone), and Scarborough Shoal (also within the Philippines' EEZ zone). Id. See Sean Mirski, The South China Sea Dispute: A Brief History, Lawfare (June 8, 2015, 4:00 PM), https://www.lawfare blog.com/south-china-sea-dispute-brief-history (stating no claimant has historically isolated one complete area in SCS). Each claimant in the dispute holds their own historic claim to the islands, but none have historically isolated major areas of the Sea for their exclusive use. Id. Claimants, especially China, have initiated dredging missions hoping to discover remnants and remains of their State settlers within the disputed islands to provide evidence of exclusive use. Id. Most historic claims to islands; however, overlap, and revolve around ancient fishing traditions in specific areas throughout the SCS. Id.
(95.) See In re South China Sea Arbitration, Case No. 2013-19, at 35 (discussing Chinese territorial claims founded in ancient fishing practices). China's name for the Spratly Island chain are the "Nansha Islands." Id. China argued that Chinese fishermen had been fishing in Nansha Islands for generations, "working and living there, carrying out fishing activities, digging wells for fresh water, cultivating land and farming, building huts and temples, and raising livestock." Id. China claimed these activities were evidenced in a manual of sea routes, which had been passed down in Chinese history. Id. The Philippines, however, had observed that the Chinese fishermen had only stayed on the islands temporarily, and there was no direct evidence of China's assertions. Id.
(96.) See Mirski, supra note 94 (providing historical background of claims within SCS).
(97.) See Limits in the Seas Report No. 143, supra note 94, at 1-2 (explaining China's claim through "nine-dash line" map). The map depicts "nine line segments (dashes) encircling waters, islands, and other features of the South China Sea." Id. The map submitted in 2009, closely replicated a map that was first published in the late 1940s, during post-war land reclamation efforts by the Nationalist government of the Republic of China. Id. at 3. Both maps include loosely drawn lines, without coordinates or equally proportionate spacing, which encircles all three major groups of islands currently under dispute over sovereignty. Id. at 4. Dashes are also drawn close to the shores of bordering States, such as Dash 1 being only fifty nautical miles from Vietnam's coast. Id. at 5. The closest dash to a coastal State is Dash 9, which is only twenty-six nautical miles from Y'Ami Island, the Philippines' most northern island. Id.
(98.) See Mirski, supra note 94 (explaining Battle of Paracel Islands, where China "wrestled out features" from Vietnamese control). After the Philippines began searching for oil, China soon followed, invading any valuable island or feature within grasp. Id. China continued to forcefully occupy more islands from Vietnam, including Johnson Reef, where several dozen Vietnamese were killed. Id.
(99.) See id. (stating Chinese artificial structure building in Mischief Reef as result of Philippine oil extraction). In 1995, the Philippines began seeking out oil reserves in the Spratly Islands, but soon thereafter, Chinese bunkers were built on top of the reef. Id. See In re South China Sea Arbitration, Case No. 2013-19, at 399 (providing factual background of Chinese actions at Mischief Reef). After Chinese fiberglass structures were built, Filipino fishermen stated the increased presence of approximately a thousand Chinese uniformed men patrolling vessels and structures around the reef. Id.
(100.) See Sean Mirski, Magnetic Rocks: Assessing China's Legal Strategy in the South China Sea, The National Interest, (May 19, 2014), available at http://nation alinterest.org/feature/magnetic-rocks-assessing-chinas-legal-strategy-the-south-10481 (analyzing China's SCS forceful strategy of using civilian maritime agency ships); Beech, supra note 85 (discussing Chinese subsidies in fishing fleets). Increased competition over fishing locations resulted in China bolstering its fishing vessels through state subsidies, where today China installs advanced technology, such as free satellite-navigation systems, on its fishing fleets. Beech, supra note 85. See also Megha Rajagopalan, China Trains 'Fishing Militia' to Sail into Disputed Waters, Reuters, (Apr. 30, 2016, 10:11 PM), http://www.reuters.com/ article/us-southchinasea-china-fishingboats-idUSKCNOXSORS (reporting on China's strategy to militarize fishing fleets). China's strategy has led to increased militarization of fishing fleets, which include "military training and subsidies," with the training emphasizing to "[safeguard] Chinese sovereignty" while fishing the SCS. Id.
(101.) See What is ASEAN?, BBC News (Nov. 13, 2014), http://www.bbc.com/ news/world-asia-30015680 (explaining ASEAN partnership and significance). ASEAN stands for Association of Southeast Asian Nations. Id. Member countries include all currently in the SCS dispute, except China. Id. ASEAN was established in 1967, promoting "collaboration and co-operation among member states" and to advance regional economic interests. Id. Overlapping claims by Member States have caused hiccups of disunity within the association; however, there are successful resolutions outside of the SCS conflict, such as the freeing and opening of Myanmar without confrontation. Id. ASEAN had long tried to establish a code of conduct on the issue as a non-confrontational commitment by Member States preserving regional stability, however, China refused to agree to a multilateral agreement, until 2002. Id. See Mirski, supra note 94 (describing initiation of ASEAN DOC); 2002 Declaration On the Code of Conduct on Parties in the South China Sea, Jul. 22, 2002, ASEAN, available at http://asean.org/?static_post=declaration-on-the-conduct-of-parties-in-thesouth-china-sea-2 [hereinafter DOC] (listing commitments under DOC). Along with reaffirming a commitment to the U.N. Charter, UNCLOS, and other international treaties governing state-to-state relations, the parties of DOC promised "to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner." Id. at art. 1, 5.
(102.) See Scarborough Shoal Standoff: A Timeline, Inquirer.net (May 9, 2012, 10:01 AM), http://globalnation.inquirer.net/36003/scarborough-shoal-standoff-a-histor icaltimeline (discussing provocative reclamation of Scarborough Shoal in 2012). China disregarded the 2002 DOC by reclaiming Scarborough Shoal, an area within the Philippines' EEZ. Id. See also Limits in the Seas Report No. 143, supra note 94, at 17 (discussing Chinese artificial land structures built in violation of 2002 DOC). China's land reclamation tactics of building artificial structures on top of LTEs were in violation of the general "spirit of cooperation" and "self-restraint" provided by Article 5 of the 2002 DOC. Id. at 9,11-13; United Nations Convention on the Law of the Sea, supra note 31, at art. 5.
(103.) See Mirski, supra note 94 (stating notes verbales by Malaysia and Vietnam requesting rights to continental shelf). Jointly, Malaysia and Vietnam submitted requests to the UNCLOS auspice, Commission on the Limits of the Continental Shelf (CLCS), which jumpstarted other claimants to submit similar claims over territorial rights. Id. As a response to the influx of claimant submissions, China submitted a map with nine dashes encircling almost the entire SCS, claiming it as historic evidence of sovereignty. Id. See Limits in the Seas Report No. 143, supra note 94, at 1-7 (describing submission of China's "dashed-line" claim over SCS). Along with stating objections to Malaysia-Vietnam joint submission over rights to the continental shelf, China's note verbale stated its indisputable sovereignty over the disputed islands in the SCS. Id. "China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over relevant waters as well as the seabed and subsoil thereof...." Id. at 11. The letter concludes by falsely stating the Chinese consistently exercised sovereignty over the claimed areas, which was additionally recognized, or "widely known by the international community." Id. at 1. Two years later, China submitted an amended note verbale, additionally stating Chinese sovereignty stems from "abundant historical and legal evidence[,]" however, there have been no other officially provided evidence backing up China's historic claim illustrated by the dashed-line map. Id. at 16.
(104.) See China Signs Exploration Contract with ISA, Int'l Seabed Auth., https://www.isa.org.jm/news/china-signs-exploration-contract-isa (last visited Jan. 10, 2017) (reporting on China's recent ISA contract for deep-sea mining in Southwest Indian Ridge). In 2011, the ISA granted China a fifteen-year contract for "prospecting and exploration for polymetallic sulphides" found on the sea floor. Id. See China Gains Rights to Explore 10,000-Square-Km Int'l Seabed Sulphide Ore Deposit, CCTV.com, (Nov. 19, 2011, 9:09 AM), http://english.cntv.cn/program/newsupdate/ 20111119/102879.shtml (discussing China's exploration licenses granted by ISA).
(105.) See China Gains Rights to Explore 10,000-Square-Km Int'l Seabed Sulphide Ore Deposit, supra note 104 (stating China's rights granted by ISA). The license allows China to "enjoy pre-emptive rights to research and develop metal ore deposits in the deep sea . . . ." Id. Extracting the deposits from the seafloor allows for a new source of energy to be exploited by China, for its country's own use or to sell worldwide. Id.
(106.) See supra note 19 and accompanying text (describing ISA's purpose in regulating exploitation of marine resources); David Shukman, Deep Sea Mining Licenses Issued, BBC News, (July 23, 2014), http://www.bbc.com/news/science-environment-28442640 (declaring lack of ISA protocol in determining impact on marine environment subject to mining); Seabed Mining, Earthworks.org, (last visited Jan. 10, 2017), https://earthworks.org/issues/ seabed_mining/ (discussing lack of guidelines by ISA and oversight on impact of marine life). Although the ISA's purpose to regulate exploration may be achieved by granting licenses, ISA guidelines to minimize environmental impact is not yet finalized, which led to much opposition as the deep sea environment is a fragile and rarely disturbed ecosystem. Seabed Mining, supra. See also Wedding, et al., supra note 19, at 144 (stating UNCLOS-influenced principles guiding ISA). The area subjected to deep-sea mining by ISA grants is "legally part of the 'common heritage of mankind' and is not subject to direct claims by sovereign states," whereby the ISA is subject to a "trustee obligation" to respect the marine environment for future generations. Id. Without environmental protection guidelines established prior to granting licenses, however, there is the potential for destructive impact on the sea floor. Id. Scientists also advocate that the ISA should consider suspending licenses, until Marine Protected Areas (MPAs) on the sea floor are established to ensure minimal impact on susceptible environments. Id. at 145. See also Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, International Seabed Authority (May 7, 2010), at 46, available at https:// www.isa.org.jm/files/documents/EN/Regs/PolymetallicSulph ides.pdf (stating protocol for exploration licenses and reasons for suspension). Noncompliance with LJNCLOS provisions justifies the ISA to suspend a granted exploration license. Id. Further, the ISA may issue emergency orders to suspend operations by a licensee "reasonably necessary to prevent, contain and minimize serious harm or the threat of serious harm to the marine environment...." Id. at 20-21.
(107.) See Press Release, The Int'l Seabed Auth, ISA Receives Voluntary Trust Fund Contribution from China, available at https://www.isa.org.jm/news/isa-receivesvoluntary-trust-fund-contribution- china, (last visited Jan. 10, 2017) (stating China's recent donation to ISA). China recently donated USD 20,000 to the ISA's voluntary contribution trust fund. Id.
(108.) See Scarborough Shoal Standoff: A Timeline, supra note 102 (listing timeline of Scarborough Shoal incidences between claimants leading up to Chinese occupation in 2012). Prior to the incident in April 2012, there had been a fractured history of Chinese fishing vessels conflicting with Filipinos at the Shoal. Id. In early April 2012, the Philippine Navy caught Chinese fishing vessels again at the Shoal, illegally harvesting "corals, giant clams, and live sharks." Id.
(109.) See Scarborough Shoal Standoff: A Timeline, supra note 102 (outlining incident). Chinese maritime surveillance ships immediately approached, preventing the arrest of the Chinese fishing vessels and access to the Shoal, initiating the standoff. Id. During the standoff, then-Filipino President Aquino stated, "What is important here is that we take care of our sovereignty. We cannot give [Scarborough Shoal] away and we cannot depend on others but ourselves...." Id. See also Batongbacal, supra note 41 (describing brief history of conflict between Philippines and Chinese). After a months-long standoff, both States signed a mutual withdrawal agreement in June, however, shortly after Philippine Naval ships left the area, Chinese ships returned. Id. After taking control of Scarborough Shoal, China set up a blockade forbidding access. Id. See also A Year After Panatag Stand-off, Shoal Firmly Controlled by China, GMA News, (Apr. 23, 2013, 5:27 AM), http://www.gmanetwork.com/ news/ story/305062/news/world/a-year-after-panatag-stand-off-shoal-firmly-controlled-bychina (describing Chinese surveillance ships blocking access to Shoal over year later after 2012 standoff). China's blockade of ships continuously chased away local fishermen, preventing access to the once plentiful fishing grounds, and impacting the lives of Filipinos dependent on fish from the Shoal. Id.
(110.) See Mirski, supra note 94 (stating Philippines initiating claim in arbitral tribunal as response to Chinese occupation of Scarborough Shoal in 2012). On January 22, 2013, the Philippines submitted a claim to the PCA, requesting an arbitral tribunal to clarify the legal status of China's claims over islands within the Philippines' EEZ zones. Id. See Batongbacal, supra note 41 (detailing Philippines' submission to PCA in 2013). See also Press Release, PCA, The South China Sea Arb., The Tribunal Renders Its Award, 2 (July 12, 2016) [hereinafter SCS Press Release], available at https:// pca-cpa.org/wp-content/uploads/sites/ 175/2016/07/PH-CN-20160712-Press-ReleaseNo-ll-English.pdf (describing initiation of Philippines' submission).
(111.) See Editorial Board, 'A Great Wall of Sand' in the South China Sea, Wash. Post, (Apr. 8, 2015), https://www.washingtonpost.com/opinions/a-great-wall-of-sand/ 2015/04/08/ d23adb3e-dd6a-lle4-be40-566e2653afe5_story.html (reporting on Chinese building artificial islands in SCS). After initiation of the PCA ruling in 2013, Chinese land reclamation aggression increased, resulting in "dredging its atolls, turning coral reefs into more permanent and larger islands." Id. It was evident that China was increasing its efforts to "build artificial lands by pumping sand on to live coral reefs ... and pouring them over with concrete." Id.
(112.) See supra notes 38, 39, 40 and accompanying texts (detailing maritime entitlement zones, and application to islands). UNCLOS provides that any island within a State's sovereignty gains maritime entitlement zones. United Nations Convention on the Law of the Sea, suprr note 31, at art. 33, 73, 121. See Ronald O'Rourke, Cong. Research Serv., R42784, Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress 7-5700 (2017), at Summary, 31, 35-37 (discussing results of China's land reclamation in SCS and China's "salami-slicing strategy"). China's land reclamation projects have transitioned LTEs into living outposts, adding over "3,200 acres of land to ... features [China] occupies." Id. at 35. China urbanization of features includes artificial "harbors, dredged natural harbors," airfields, and some with "communications and surveillance systems...." Id. at 36. Although China claims these major projects are only to improve life on the islands for stationed personnel, it is more probable to assume China is seeking "de facto control by improving its military and civilian infrastructure" throughout the Sea's features. Id. China's "salami-slicing strategy" in the SCS consists of periodic claims to territory, with increments of inertia leading to sudden acts of occupation over features, with no act amounting to a "casus belli, to gradually change the status quo" in the SCS. Id. at Summary, 31. See Robert Potter, Dredging Up Disaster in the South China Sea, The National Interest, (Mar. 29, 2016), http://nationalinterest.org/feature/dredging-disaster-the-south-china-sea-15612 (evaluating China's reclamation effo rts and legal implications of artificial islands). With land reclamation efforts leading to sustainable living conditions on the artificial islands, it creates a purposefully uncertain realm in considering the islands as extensions of Chinese sovereignty. Id. UNCLOS Article 121 provides that features "which cannot sustain human habitation or economic life ... shall have no exclusive economic zone or continental shelf [rights]," however, China's artificial island projects can clearly sustain independent human habitation. Id. Further, China's acts seem to exemplify "ambitions to change the way EEZ space is considered under international law," where its land reclamation projects could lead to a "monopoly" of islands throughout the SCS, providing extensions of national security. Id.
(113.) See SCS Press Release, supra note 110 (discussing appropriate jurisdiction under UNCLOS art. 287).
(114.) See id. (stating Philippines' claim in PCA). The arbitral tribunal had to specifically address issues concerning the application and interpretation of UNCLOS, including the "role of historic rights and source of maritime entitlements in the South China Sea, the status of certain maritime features and ... entitlements they are capable of generating, and the lawfulness of certain actions by China that were alleged ... to violate the Convention." Id. Due to the fact that the Philippines initiated the arbitration under UNCLOS compulsory dispute resolution options, under Article 287, the tribunal "emphasized that it [did] not rule on ... sovereignty over land territory ..." or establish a maritime delimitation boundary within the disputed areas. Id. See Catherina Valenzuela-Bock, Arbitral Tribunal Rules It Has Jurisdiction to Hear South China Sea Dispute (Oct. 29, 2015), American Society of International Law: International Law in Brief, (Nov. 6, 2015, 3:52 PM), https://www.asil.org/ blogs/arbitral-tribunal-rules-it-has-jurisdiction-hear-south-china-sea-dispute-october29-2015 (outlining Philippines' objective of initiating proceedings with China). Determining the legal status of features, along with the legal implications of China's aggressive acts, within contested areas was not out of the jurisdiction permitted by UNCLOS Article 287 means for dispute settlement, as it concerns the interpretation and application of UNCLOS. Id. See also supra notes 31, 35 and accompanying text (discussing permissible subject matter jurisdiction under UNCLOS art. 287).
(115.) See supra note 114 and accompanying text (stating Philippine's claim to tribunal included legal implications of Chinese fishing practices).
(116.) See Position Paper of the Government of the People's Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, Ministry of Foreign Affairs of the People's Republic of China (Dec. 7, 2014), available at www.fmprc.gov.cn/mfa_eng/zxxx_662805/ tl217147.shtml [hereinafter China's Position Paper) (outlining China's objections to arbitral tribunal's jurisdiction over dispute). China's primary objections to the arbitral tribunal proceedings included lack of jurisdiction, and lack of necessary clarification of the legal status of its land reclamation projects, since Chinese sovereignty is "undisputed" over the SCS features. Id. China stated it was not subject to UNCLOS compulsory dispute settlement means, arguing that every State has the "freedom of ... [choosing] the means of dispute settlement," and since China did not agree to arbitration in the present case, it does not have to participate. Id. China counters the Philippines' submission by claiming it was in breach of international law when it initiated the proceedings in the first place, arguing it agreed to only binational negotiations over the issue in the ASEAN 2002 DOC, implying preemptive authority of the DOC over UNCLOS. Id. In its conclusion, China asserts that any outcome of the arbitration would have no legal effect on its present and continued actions over features in the SCS. Id. See Brief by Xu Hong, supra note 9 (reiterating China's objection to proceedings); See Shannon Tiezzi, Why China Won't Accept International Arbitration in the South China Sea, The Diplomat, (Dec. 9, 2014), https://thediplomat.com/2014/12/why-china-wont- accept-international-arbitration-in-the-south-china- sea/(explaining China's objection of proceedings in position paper). China's position paper focuses on rejecting jurisdiction by claiming the "essence" of the proceedings encompasses an issue of territorial sovereignty, which is outside the jurisdiction of the tribunal. Tiezzi, supra. "China has made it very clear that it will not change any of its positions on the [SCS] due to the Philippines' case, regardless of what the tribunal decides." Id. See Chun Han Wong, China to Continue Construction on Disputed Islands, Wall St. J., (July 18, 2016), http://www.wsj.com/articles/china-flies-militaryaircraft-near-scarborough-shoal-1468 852659 (stating China has boycotted proceedings from inception). Some believed China's act of boycotting the proceedings and continuing construction on current projects, displayed the intent to further construct on more islands, namely Scarborough Shoal. Id.
(117.) See Jeremy Page, Beijing's Claims of South China Sea Support May Not Hold Water, Wall St. J., June 17, 2016 available at http://www.wsj.com/articles/bei jings-claims-of-south-china-sea-support-may-not-hold-water-1466138014 (exposing China's strategy to gain faulty international support).
(118.) In re Matter of the South China Sea Arbitration (Phil. v. China), PCA Case Repository 1 (Perm. Ct. Arb. 2016), available at https://pea-cpa.org/wp-eontent/ uploads/ sites/l75/2016/07/PH-CN-20160712-Award.pdf [hereinafter PCA Award] (stating PCA award rendered on July 12, 2016). See Aldo Perez, Permanent Court of Arbitration Rejects China's Sovereignty Claims in South China Sea (July 12, 2016), American Society of International Law: International Law in Brief, (Aug. 1, 2016), https://www.asil.org/blogs/permanent-court-arbitration-rejects-china's-sovereignty-claims-south-china-sea- july-12-2016 (outlining three major points of PCA's holding). The three major points established by the PCA's award are determining the legitimacy of China's historic claims, the legal significance of the contested islands and artificial structures, and the potential environmental impact violations by China's fishing and island building practices. Id.
(119.) See SCS Press Release, supra note 110, at 1 (stating first issue decided was legitimacy of China's "nine-dash line map"). After determining jurisdiction concerning historic rights, and after considering China's little involvement in submissions providing evidence to the contrary, the tribunal concluded UNCLOS law extinguishes any former historic entitlements contrary to its establishment of maritime zones. Id. This included delegitimizing the infamous nine-dash line map that China had centered on its historic claim over the islands. Id.
(120.) See SCS Press Release, supra note 110, at 1-2. (stating China's claim to SCS through nine-dash line map had no legal basis). In addition to not finding any legal basis in China's nine-dash line map, the tribunal found that China did not produce sufficient evidence to establish exclusivity with regard to resources in the contested areas. Id. at 2. China also did not produce evidence of exclusivity of the waters, whereby fishermen from China, along with those from other States, had shared use of the area. Id.
(121.) See SCS Press Release, supra note 110 (discussing dismissal of historic claims upon ratification of UNCLOS). See also PCA Award, supra note 118, at 116 (ruling UNCLOS governs dispute between Philippines and China). The PCA concluded that "[UNCLOS] defines the scope of maritime entitlements in the South China Sea, which may not extend beyond the limits imposed therein." Id.
(122.) See PCA Award, supra note 118, at 175 (beginning PCA award discussion concerning "status of maritime features" in SCS). See also SCS Press Release, supra note 110, at 2 (stating arbitral tribunal's decision on status of features within contested waters). In its deliberation, the tribunal considered whether "any of the features claimed by China could generate maritime" entitlements. Id.
(123.) See PCA Award, supra note 118, at 175 (stating tribunal's determination of legal status of islands). Following UNCLOS art. 121, "rocks which cannot sustain human habitation or economic life of their own" are incapable of acquiring an EEZ or rights to the continental shelf. Id. See also SCS Press Release, supra note 110, at 2 (stating tribunal reasoning). The tribunal further emphasized that although many of China's currently occupied islands do support human habitation, it is solely due to the construction and "outside support" of China's recent acts of "land reclamation." Id. The tribunal reinforced that the legal status of the features under UNCLOS is evaluated under the features' natural state, whereby artificial island making does not alter the law. Id. The only historic evidence presented in the Spratly Islands to establish human habitation prior to China's artificial island construction, consisted of small groups of fisherman and attempts of "guano mining enterprises." Id. The tribunal concluded that "none of the features claimed by China [were] capable of generating an exclusive economic zone," and the Spratly Islands as a whole did not constitute an archipelago sufficient to generate its own maritime zones. Id.
(124.) See SCS Press Release, supra note 110, at 10 (stating tribunal's analysis on lawfulness of Chinese actions in fishing and artificial island building). Having established that the artificial islands constructed by China had no independent legal status, and were therefore geographically within the Philippines' EEZ, the tribunal found many of China's expansive acts as interfering with the Philippines' exclusive economic rights, constituting violations of UNCLOS. Id. Specifically, China's interference with "Philippine petroleum exploration," prohibitive fishing measures to keep Philippine fishermen outside of areas within the Philippines' EEZ and construction of artificial structures on top of features within the Philippine^ EEZ, were all in violation of the Philippines' "sovereign rights with respect to its exclusive economic zone and continental shelf." Id. Specifically, with regards Scarborough Shoal the tribunal held it was land, visible at high tide, whereby it may generate marine entitlement. Id. Although the tribunal did not address the State sovereignty of the Shoal, it concluded that China's acts of occupation and forceful expulsion of Filipino fisherman constituted a violation by China, in its duty to respect "traditional fishing rights of Philippine fishermen...." Id. In its avoidance to address sovereignty claims over the Shoal, the tribunal noted that if the Philippines were keeping Chinese fishermen from the shoal, it would have equally been in violation. Id. With regard to China's land reclamation projects, with the assistance of three coral reef biology experts, the tribunal found that "China's recent large-scale land reclamation" and artificial island building in the Spratly Islands "has caused severe harm to the coral reef environment...." Id. Accordingly, the tribunal held that China was in violation of UNCLOS Articles 192 and 194, which provides overarching principles for States to "preserve and protect the marine environment with respect to fragile ecosystems ..." or endangered or threatened species. Id. With evidence of Chinese fishermen practices to harvest giant clams that showed irreparable damage, the tribunal determined that "Chinese authorities were aware of [the practices] and failed to fulfill their due diligence obligations under the Convention to stop them." Id.
(125.) See Wong, supra note 116 (quoting Chinese navy chief stating PCA decision and foreign opposition will not stop construction). Two days after the PCA Award, Chinese navy chief, Wu Shengli, stated China "will never stop" the island building construction "no matter what country or person applies pressure...." Id. The navy chief also defended the land reclamation projects, calling them "justified and lawful." Id.
(126.) See China's Position Paper, supra note 116 (deterring against any third-party interference in SCS dispute, except involved countries). China's position is that the international community, through the use of tribunals, should not be involved in this dispute, and it should resolve only between China and the other SCS countries. Id. (stating China's objection to third-party interference in dispute over sovereignty claims with other SCS nations).
(127.) See China's Position Paper supra, note 116 (stating China's consistent objections to jurisdiction). China consistently asserts the notion that there is no jurisdiction over issues of territorial sovereignty before the arbitral tribunal, however the tribunal specifically focused on the application and interpretation of UNCLOS over the features China has aggressively claimed and occupied, along with the legal weight, if any, of China's vague claims of sovereignty by unsupported historic evidence. Id.
(128.) See supra note 116 and accompanying text (implying China's position that DOC preempts UNCLOS). In the China's Position Paper, China counter-argues the Philippines submission by claiming it was in violation of its previous accord in the 2002 DOC, which provided for negotiations between regional States only, and without an impartial third party decider. China's Position Paper, supra note 116. The 2002 DOC, however, specifically stated the signatories overarching commitment to the principles of the U.N. Charter and UNCLOS. DOC, supra note 101.
(129.) See Sean Mirski, American Paralysis and Troubles in the South China Sea: A Primer on the Philippines-China Arbitration, LawFare, (Oct. 13, 2013, 4:06 PM), https://www.lawfareblog.com/american-paralysis-and-troubles-south-china-sea-primer -philippines-china-arbitration (describing Chinese strategy of bilateral negotiation on SCS). Critics claim China's urge for settling the SCS territorial claims through bilateral agreements exemplifies a "divide-and-conquer strategy," that is "designed to leverage China's strength in one-on-one encounters." Id.
(130.) See Graham Allison, Of Course China, Like All Great Powers, Will Ignore an International Legal Verdict, The Diplomat, (July 11, 2016), http://thediplomat .com/2016/07/of-course-china-like-all-great-powers-will-ignore-an-international-legalverdict/ (stating China will likely ignore ruling, as other world powers have in past). The United States' veto over the 1984 Nicaraguan proceedings in the ICJ has prompted critiques analogizing with China's current objection, stating China's national security interests are similarly at stake. Id. Additionally, Russia's defiance in the PCA Greenpeace proceedings similarly exemplify great powers disregarding international law when national interests are at issue, which in that case was Russia's expansive intent for expansion in the Arctic. Id. But see Greg Raymond, The South China Sea Crisis: Next Stop the UN Security Council?, The National Interest, (May 30, 2016), http://nationalinterest.org/blog/the-buzz/the-south-china-sea-crisisnext-stop-the-un-security-council- 16397 (proposing China's options to avoid tribunal's award). The PCA is not subject to the UNSC veto power, which would have likely been exercised had that been the case. Id. Other members of the UNSC, however, may draft a resolution urging China's compliance, as the SCS dispute continues to raise tensions and threats of regional peace and security. Id.
(131.) See Allison, supra note 130 (describing SCS arbitration analogous to United States-Nicaragua case, and leading to similar results).
(132.) See Clay Dillow, U.S. On Edge Over New Powder Keg in the South China Sea, CNBC, (Oct. 21, 2016), http://www.cnbc.com/2016/10/21/china-and-the-philip pines-could-ink-oil-exploration-deal-in-south-china-sea.html (reporting potential joint exploration between Philippines and China after Duterte visit to Beijing). Due to both States' high needs for energy, there have been reports of a potential joint exploration agreement. Id. See Daxim Lucas, PH to Agree on Joint Oil Exploration with China in Disputed Area, Inquirer.net, (Oct. 19, 2016, 5:02 AM), http://business.inquirer.net/216959/ph-to-agree-on- joint-oil-exploration-with-china-in-disputed-sea (reporting on potential energy exploration agreement between Philippines and China post arbitration ruling). Although there were reports of a joint exploration deal between the states, it would likely be in areas indisputably already under the Philippines' control, such as in Recto Bank. Id. Regarding a potential joint deal, the Philippines reiterated that "'[t]he issue of sovereignty will not be touched,'" and if this accord were to be put in practice, it would be only first steps in confidence building between the two nations. Id.
(133.) See Christopher Woody, China and the Philippines Have Turned the Corner On One of Their Biggest Disputes, but the Path Ahead is Unclear, Business Insider, (Oct. 31, 2016, 3:11 PM), http://www.businessinsider.com/china-philippines-scarbor ough-shoal-dispute-2016-10 (reporting on Filipino fishermen returning to Scarborough Shoal). In late October 2016, after President Duterte's visit to Beijing, there had been reports of Chinese coast guard retreating for the first time from Scarborough Shoal, since the Chinese seized it in 2012. Id. Although there were still Chinese '"white ships'" present at the Shoal, they were not combative or denying access to approaching Filipino fishermen. Id. Since Duterte's visit to Beijing, Chinese officials have reported "'proper arrangements'" to allow the fishermen to return, however there have been no resolutions as to sovereignty claims of the area. Id. In efforts of keeping sovereignty claims out of the abrupt accord, there could still be issues of whether either State was '"allowing*" or '"permitting"' access by the fishermen. Id. Some reports believe this could be a "'temporary olive branch'" held out by Beijing, to curb Duterte into more bilateral negotiations with China over sovereignty of the disputed islands. Id. Noting its implications as a temporary measure, the accord was notably, not formal or in writing, which would have invoked contractual obligations or "'pacta sunt servanda.'" Id.
(134.) See Colin Clark, Chinese Threaten Japan, Australia Over South China Sea; Time for U.S. FON Ops?, Breaking Defense, (Aug. 23, 2016), http://breakingdefense.com/2016/08/chinese-threaten-japan- australia-over-south-china-sea-time-for-us- fon-ops/ (discussing China's increased military threats to other nations to halt freely sailing through SCS); USAFeaturesMedia, Chinese Admiral Warns: 'Freedom of Navigation' Patrols Conducted By U.S. Navy Could End 'In Disaster', Nat'l Security News, (July 26, 2016), http://www.nationalsecurity.news/2016-07-26-chinese-admiral-warns-freedom-of-navigation-patrols- conducted-by-u-s-navy-could-end-in-disaster.html (stating China's post-PCA objection to increased U.S. freedom of navigation exercises). China maintains the position that the U.S. freedom of navigation exercises are unlawful, and are only performed to instigate a military conflict. USAFeaturesMedia, supra.
(135.) See Sydney J. Freedberg Jr., China Seizes U.S. Underwater Drone, Fortifies Disputed Islets, Breaking Defense, (Dec. 16, 2016, 3:40 PM), http://breakingde fense.com/2016/12/china-seizes-us-underwater-drone-fortifies-disputed-islets/ (reporting on Dec. 2016 U.S. drone seizure by Chinese, with intent to send warning message). There were reports that the drone was seized by China as a warning message, however, "[tjhrough direct engagement with Chinese authorities, [the United Slates later] secured an understanding that the Chinese will return the [drone]...." Id. See Chris Buckley, Chinese Navy Returns Seized Underwater Drone to U.S., N.Y. Times, (Dec. 20, 2016), available at https://www.nytimes.com/2016/12/20/world/asia/china-returns-us-drone.html?_r=0 (describing seized U.S. drone as "ocean-monitoring device"). The U.S. drone was initially exercising lawful navigation exercises in the SCS. Id. U.S. spokesman for the Department of Defense, described the incident as '"inconsistent with both international law and standards of professionalism for conduct between navies at sea.'" Id. See also Helene Cooper, U.S. Demands Return of Drone Seized by Chinese Warship, N.Y. Times, (Dec. 16, 2016), available at https:// www.nytimes.com/2016/12/16/us/politics/us-underwater-drone-china. html (stating seized U.S. drone in act of collecting oceanographic data). The U.S. drone was lawfully in the SCS, collecting data related to "salinity in the sea, clarity of water and ocean temperature...." Id.
(136.) See supra Part III.A (discussing China's primary objection to participate due to lack of jurisdiction by PCA). See also supra note 116 and accompanying text (stating China's lack of acknowledgement of any dispute over claims in SCS). In a publicized position paper on the PCA proceedings, China reiterated how its sovereignty in the SCS is undisputable, publicly ignoring any competing claims by bordering States. China's Position Paper, supra note 116.
(137.) See supra note 31 and accompanying text (listing UNCLOS dispute settlement options available to UNCLOS ratified members). UNCLOS procedural rules regarding dispute settlement specifically state that a party absence does not bar continuation of tribunal proceedings. United Nation's Convention on the Law of the Sea, Part XI, [section]5. This infers the logical concept that dispute settlement does not require approval by all parties to a dispute. Id. See also supra Part II.C.1.b (providing example of failed jurisdictional objection by Russia); supra note 63 and accompanying text (explaining how PCA jurisdiction withheld notwithstanding Russia's defiance).
(138.) See supra note 117 and accompanying text (stating China's objection to PCA proceedings due to obligations set forth in ASEAN DOC). Part of China's position in objecting to the PCA's jurisdiction over the dispute focused on how both States' obligations set forth in the DOC limited settling the dispute over territory to binational negotiations only. Page, supra note 117. In its objection, China specifically highlighted a commitment to only binational negotiations over the dispute, to counter the Philippines' initial submission of its claims to the PCA. Id.
(139.) See supra Part III.A (describing China's initial and continued rejection to PCA proceedings). See also supra note 116 and accompanying text (quoting China's position that its sovereignty over contested islands is "undisputed"). In describing China's sovereignty over the contested islands as "undisputed," China expresses its position that the other claims by bordering countries are illegitimate and insignificant. China's Position Paper, supra note 116. The outright denial of the conflict bolsters the concern that China believes its dominance in the region will lead to success in controlling the SCS. Id.
(140.) See supra note 101 and accompanying text (stating foundation of ASEAN DOC was influenced by UNCLOS). The DOC text begins with a clear reaffirmation of UNCLOS, highlighting the intent to follow UNCLOS law to settle the dispute over contested claims. DOC, supra note 101. The DOC emphasized how the signatories should strive to maintain stability in the region, and avoid military conflict. Id. Further, the DOC specifically included that signatories are to refrain from inhabiting islands, reefs, and the like, or exercising expansive control over any disputed territory. Id. 14. See DOC, supra note 101 and accompanying text (stating commitment to UNCLOS principles).
(141.) See DOC, supra note 101 (stating promises made by DOC signatories to reflect principles to maintain regional peace and security). The DOC specifically called on signatories to "exercise self-restraint in the conduct of activities" that would "escalate" the dispute. Id. 15.
(142.) See DOC, supra note 101 (reaffirming ASEAN nations commitment to UNCLOS in signing DOC). The DOC begins with a clause stating the parties reaffirmation of "their commitment to the purposes and principles of the [U.N. Charter] [and] the 1082 UN Convention on the Law of the Sea ..." Id. 11. The DOC further states that those "universally recognized principles of international law" would govern "state-to-state relations." Id.
(143.) See id. (displaying China's consent to ASEAN DOC); supra Part II.B (explaining UNCLOS dispute resolution options afforded to Member States); supra note 31 (discussing ratification of UNCLOS that triggers compulsory dispute resolution options, including arbitration). Upon ratification of UNCLOS, options for dispute resolution may be exercised by a Member State, regardless if an opposing State does not agree to participate. United Nations Convention on the Law of the Sea, supra note 31, at art. 59. See also supra note 35 and accompanying text (listing applicable means for dispute resolution regarding UNCLOS application or interpretation). See also supra note 114 (discussing proper jurisdiction by PCA).
(144.) See supra note 31 and accompanying text (discussing UNCLOS-provided rules of arbitral tribunal to settle dispute). UNCLOS specifically allows that Member States are not barred from continuing arbitration, regardless if an opposing party defaults or fails to submit a defense in the proceedings. United Nations Convention on the Law of the Sea, supra note 31, at art. 286-288. See also supra Part III.A (stating how China's lack of participation did not bar continuation of PCA proceedings).
(145.) See SCS Press Release supra note 110, at 1 (discussing PCA jurisdictional limits in only interpretation and application of UNCLOS). The PCA limited its award to specific issues of the legitimacy of China's historic claims, the legal status of maritime features in contested waters and any potential UNCLOS entitlements, and whether China's fishing and construction activities were contrary to UNCLOS environmental principles. Id. The tribunal purposefully did not address any determination of sovereignty. Id. The tribunal emphasized that it would not directly rule on which State had sovereignty rights to the territory, so as to violate its permissible jurisdiction as it was exercised under compulsory dispute options under UNCLOS Article 287. Id. Compulsory dispute options may only concern interpretation and application of UNCLOS, and not establish actual sovereign rights to either party. Id.
(146.) See id. (stating PCA specifically excluding issues of sovereignty in determination of award). In determining the three major issues, the PCA's award provided impartial answers to longstanding concerns that had never before been addressed. Id. The three conclusions established by the PCA were that China's historic claims did not hold legal weight, the artificial island structures built by China would not acquire legal significance under UNCLOS, and China's island building construction and exploitive fishing practices were in violation of UNCLOS environmental preservation obligations. Id. at 2. Although the tribunal did not rule directly on which State held sovereign rights to the contested waters, the tribunal reinforced UNCLOS law over the dispute, and confirmed the artificial island structures were within the Philippines' EEZ. Id.
(147.) See supra note 119 and accompanying text (discussing PCA's delegitimizing of China's nine-dash line map). China's nine-dash line map was the primary source of evidence of China's sovereignty claims, and was delegitimized due to the PCA ruling that China's UNCLOS ratification extinguished any former historic entitlements. SCS Press Release, supra note 110, at 1-2, 8-9. See also supra note 120 and accompanying text (stating PCA reasoning in delegitimizing China's historic claims). After finding that China's nine-dash line map was not sufficient to render historic title over the contested waters, the tribunal further concluded that China did not produce sufficient evidence to prove otherwise. SCS Press Release, supra note 110, at 8-9. The nine-dash line map was China's sole piece of evidence, which had been altered over time and deemed unfit to render legal rights over areas within the Philippines' EEZ. Id.
(148.) See SCS Press Release note 110, at 1 (explaining PCA's reasoning to dismiss China's claims due to lack of exclusive use); Mirksi, supra note 94 (discussing SCS as large body of water shared by bordering States); supra note 94 and accompanying text (stating how none of SCS bordering States have exercised sole exclusive use over contested waters). Due to the fact that none of the bordering States have exercised sole exclusive use over the disputed waters, establishing sovereignty through historic entitlements would be impractical and unjust. Mirksi, supra note 94. This point bolsters why UNCLOS law should govern the dispute and the SCS bordering States marine entitlements through the UNCLOS-established maritime zones. Id.
(149.) See Koh, supra note 5 at 2636 (discussing enforceability of international law can be jeopardized by States outweighing State interests). See also supra note 21 and accompanying text (describing implications of UNSC veto on tribunal rulings). UNSC veto power is exercised in accordance with that permanent Member State's national interests or security concerns. The Power of the Veto, supra note 21 (describing impact on tribunal orders by use of veto). Accordingly, a just resolution by a tribunal may be blocked by the UNSC veto, if the resolution is contrary to the permanent Member State's interest. Id. This powerful limitation upon international tribunals established under the United Nations, greatly hinders the enforceability and overall legitimacy of those tribunals. Id.
(150.) See supra Part II.C.1, C.2 (discussing examples of defiance of international law by Russia and United States). The United States' veto of the ICJ judgment in favor of Nicaragua exemplifies the issue of intrastate interests overcoming a State's obligation to respect international law. Id. at C.1. The United States did not want to jeopardize its acts to contain Communism in countries geographically close in proximity, even though it was held to be in violation of another State's sovereignty. Id. Similarly, Russia's intent to protect its excavation in the Arctic fueled an unreasonably aggressive response to ensure no further acts of interference by other states, even if that interference is in the form of a protest by a non-governmental organization. Id. at C.2. Russia's defiance of the PCA and ITLOS orders infer the implications of ignoring international law was not outweighed by exemplifying State dominance in the international community relating to activates in the Arctic. Id.
(151.) See Allison, supra note 130 (stating noncompliance of international law by dominant States is common issue of enforceability). The international law system inherently holds issues of enforceability, when States do not comply, especially dominant States. Id. "Great powers do not recognize the jurisdiction of [international] courts--except in particular cases where they believe it is in their interest to do so.... '[T]he strong do as they will; the weak suffer as they must....'" Id. Where, for example, the founding nations of a court do not respect its jurisdiction, why would a Member State comply or respect the court? Id.
(152.) See generally supra Part II.C.1.a (discussing United States' defiance of ICJ judgment due to competing national security interests); supra Part Il.C.1.b (explaining Russian nonparticipation in PCA and unreasonable detainment of activists to project power in Arctic). See supra note 130 and accompanying text (comparing China's defiance to international law to United States in Nicaraguan proceedings).
(153.) See supra note 21 and accompanying text (listing Russia, United States, and China as UNSC founding members and holders of UNSC veto); supra Part Il.C.l.a (stating grave implications of United States' noncompliance of international law setting dangerous precedent); supra note 53-55 and accompanying text (describing U.S. objection of ICJ judgment and resulting UNSC veto, undermining enforceability of international law).
(154.) See Page, supra note 12 (exposing United States' patching relations with Nicaragua with financial aid); supra Part III.A.2.b (reporting post-PCA meeting between Philippine and Chinese presidents hinting at bilateral settlement); supra note 130 (stating potential binational agreement deal between Philippines and China post PCA).
(155.) See Page, supra note 117 (stating China's implausible support against PCA proceedings from uninvolved and distant nations). The nations supporting China's stance in the SCS dispute are uninvolved and distant in the dispute, with some even being landlocked, like Afghanistan and Lestotho. Id.
(156.) See supra Part III.A.2.b (discussing potential bilateral settlement between China and Philippines leading to uncertainty in competing territorial claims); supra note 133 and accompanying text (explaining bilateral agreement between China and Philippines as temporary and undefined). Although since the PCA's award and as a result of the meeting between Chinese and Philippine presidents, Filipino fishermen have returned to Scarborough Shoal, uncertainties on ownership of the area remains uncertain. Woody, supra note 133. By not addressing sovereignty claims but allowing Filipino fishermen to return, it is clear China does not seek to give up its claim to the Shoal, but merely incentivize the Philippines to negotiate bilaterally. Id.
(157.) See supra Part II.C.1.a (discussing United States circumventing ICJ judgment through UNSC veto); Voting System and Records, supra note 21 (listing China as UNSC founding member and holder of UNSC veto); supra Part III.A (stating Philippines initiation of PCA proceedings under UNCLOS); supra note 114 and accompanying text (discussing PCA jurisdiction over dispute resulting from UNCLOS dispute settlement options); Voting System and Records, supra note 21 (explaining UNSC veto power over any U.N.-created authority); supra Part I.A (detailing PCA and its independence from U.N. tribunals). The PCA is not a tribunal developed under the U.N. Charter, thereby obliterating any ability for China to use its UNSC veto. Id.
(158.) See supra notes 20-23 and accompanying texts (explaining lack of UNSC veto applicability to PCA award).
(159.) See Voting System and Records, supra note 20 (stating UNSC veto power applicable over U.N. tribunals); supra Part II.C.1.a (providing example of United States exercising UNSC veto over ICJ judgment); supra note 17 and accompanying text (describing ITLOS tribunal and its creation under UN-created law, UNCLOS).
(160.) See supra Part II.C.1.a (providing example of UNSC members pressuring United States to comply with ICJ judgment); supra note 54 and accompanying text (explaining UNSC resolution including overwhelming objections for United States noncompliance of ICJ judgment). Similar to China, the United States outright denied accepting an international judgment rendered contrary to its position, which led remaining UNSC members to draft official objections through UNSC resolutions. Id. UNSC members can similarly draft a resolution to push China to comply with the PCA's award and halt further expansive activities. Id.
(161.) See supra note 22 and accompanying text (stating other UNSC members could reflect objections to China's noncompliance through UNSC resolution); supra note 20 and accompanying text (explaining purpose of UNSC to maintain global peace and security).
(162.) See supra note 54-55 and accompanying text (discussing overwhelming objection to United States noncompliance of ICJ judgment through UNSC resolutions); Part II.C.1.a (explaining United States continuing with UNSC veto to overcome ICJ judgment regardless of UNSC resolution); supra note 56 (evidencing U.S. foreign aid sent to patch relations with Nicaragua, post ICJ judgment and UNSC resolution). Although the United States did not address the concerns in the UNSC resolutions, the pressure placed on the United States in being an outlaw, later led to the United States taking actions to patch relations. Id. Patching relations through financial aid, however, did not address the issue of the fractured enforceability of international tribunal decisions over dominant states. Id.
(163.) See supra Part II.C.1.a (describing United States and Nicaragua dispute concerning infiltrating Nicaraguan harbors); supra Part II.D.1 (explaining international significance of SCS through immensely used trade route); supra note 84 and accompanying text (describing SCS as critical world trade route); supra Part III.A.2.c (discussing China's objections to freedom of navigation exercises by United States in months post-PCA). Since the PCA ruling, China has already sought to interfere with lawful freedom of navigation exercises by world powers. Id. China's acts of exercising sovereignty over the region will only continue, which will greatly affect the world trade dependent on flowing through the SCS. Id.
(164.) See supra note 163 and accompanying text (stating China's claims over sovereignty of SCS raising international concern); supra Part IV.B (advocating interest of UNSC members in stopping China, due to threat of peace and security). Due to the grave importance and significance of the SCS on an international scale, any state with trade flowing through the SCS route holds an interest in halting China's continued acts of aggression. Id. Aligning objections on an international scale will put immense pressure on China that the Philippines, and even ASEAN as a collective, could not create. Id.
(165.) See supra note 163-164 and accompanying texts (advocating global interest to halt China in SCS due to international dependence on trade route).
(166.) See generally supra Part III.D (providing overview of the longstanding dispute and severity in competition for SCS natural resources); supra note 93-94 and accompanying text (stating uncertainty in territorial ownership of contested waters consistent since 1930s); supra note 129 and accompanying text (exposing China's strategy as dominant State against smaller, less powerful Philippines). Prior to the PCA proceedings, China's "divide-and-conquer" strategy consists of only consenting to binational agreements, without any third party involvement. Mirski, supra note 129 (discussing China's "divide-and-conquer" strategy). But see supra note 101-102 and accompanying texts (discussing China's consent and breach of DOC). Although China did consent to the multinational DOC, China soon after violated the agreement when it continued expansive acts of island building, such as claiming Scarborough Shoal. See Scarborough Shoal Standoff, supra note 102 (describing China's violation of DOC by standoff at Scarborough Shoal). See supra Part III.1 (detailing PCA holding as victorious for Philippines).
(167.) See supra Part III (stating China's initial objections to PCA proceedings); supra note 116 and accompanying text (exposing China's intransigent stance on issue regardless of PCA's outcome). China's failure to acknowledge the proceedings, or show interest in negotiating an equitable solution, proves China's objective to gain absolute control of the contested waters, regardless of if it is contrary to international law. China's Position Paper, supra note 116 (providing China's stance against acknowledgment of proceedings). See supra Part II.C.2.a (describing collaboration between PCA and UNCLOS-established ITLOS tribunal); supra note 73 and accompanying text (highlighting successful collaboration between tribunals leading to more influential and consistent outcomes). If the Philippines were to bring a case for marine delimitation in ITLOS against China's expansive acts, the ITLOS tribunal would likely reconcile its reasoning with the PCA's award, similar to Bangladesh-India-Myanmar delimitation cases. Burke, supra note 69 (stating ITLOS and PCA likelihood of consistency in reasoning).
(168.) See supra Part III.A (discussing Philippines' initiating proceedings against China). By initiating proceedings against China, the Philippines' brought the dispute further into the international spotlight. Id. See Part II.D.5 (describing Scarborough Shoal trigger point causing Philippines to file case with PCA to halt China's acts). The Philippines sought to apply the internationally respected UNCLOS law to the dispute, before China continued expanding over more Philippine territory. Scarborough Shoal Standoff, supra note 108 (describing Philippines' response to Scarborough Shoal standoff). The Philippines must continue to rely on UNCLOS law, notwithstanding China's defiance, because it will lead to increased support from the international community, since it is universally respected. Id. The PCA award provided the Philippines' leverage to negotiate with China, but the Philippines must continue finding alternative negotiating tools, such as China's interest in energy resources, to maintain a strong position to defend its territory. PCA Award, supra note 118 (delegitimizing China's claims to the SCS, creating leverage for Philippines to negotiate).
(169.) See supra note 111 and accompanying text (reporting on China's environmentally impacting construction of artificial islands); supra note 124 and accompanying text (discussing China's unlawful fishing practices and impact on SCS environment). China's construction of artificial islands, along with narsh fishing practices, exemplifies the State's lack of concern to respect the marine environment. SCS Press Release, supra note 110, at 2, 5, 10 (describing China's expansive and destructive acts in SCS). The PCA's award further confirms China's violation of UNCLOS law, by China continuing to ignore its impact on the marine environment in its quest for expansion. Id. See supra note 106 and accompanying text (describing ISA purpose to regulate, but also minimize environmental destruction). China's submission to the ISA in 2011 to begin drilling the deep sea floor, without any prior testing on the potential impacts on the environment, additionally shows China's disregard to preserve the marine environments for future generations. Id. ISA Protocol supra note 106, at 46 (requiring licensees to conform to UNCLOS principles).
(170.) See supra Part II.D.1 (detailing presence of oil in SCS contested areas fueling claims for sovereignty); supra Part II.D.4 (discussing China's interest in collecting alternative energy resources); supra notes 87-88 and accompanying text (stating competition for SCS resources as major issue in dispute).
(171.) See supra note 169 and accompanying text (discussing China's violation of UNCLOS in destruction of marine environment, contrary to ISA principles). The PCA identified the destruction of coral reef ecosystems as a result of China's artificial island building projects, specifically including the Chinese fishermens' propeller-reef-cutting harvesting tactics of giant clam species, greatly contributing to the species becoming endangered. SCS Press Release, supra note 110, at 2, 10 (describing PCA's ruling against China due to destructive acts towards environment).
(172.) See supra Part III.A.2.b (reporting post-PCA award meeting between Philippine and Chinese presidents considering joint exploration agreement); supra note 132 and accompanying text (discussing potential evolving relations between two States in combining needs for energy). Although peaceful dialogue with China is beneficial to build relations, the joint exploration agreement would not address issues of sovereignty as a result. Lucas, supra note 132 (discussing joint exploration agreement). By temporarily disregarding the uncertainty of ownership, it could lead to problems during the course of the agreement, as joint exploration would likely be within the Philippines' EEZ. Id.
(173.) See id. (discussing potential problems for joint exploration agreement without addressing ownership issues). But see supra note 133 and accompanying text (stating successful retreat of Chinese ships patrolling Scarborough Shoal). Although soon after the presidents' meeting Chinese ships retreated from Scarborough Shoal to allow Filipino access, there was no evidence in a determination of ownership of the Shoal. Woody, supra note 133 (describing retreat of Chinese ships from Scarborough Shoal). There were mixed reports on whether China was "allowing" or "permitting" the fishermen access, implying the retreat was unsubstantial and temporary, and likely to use as a negotiating tool for future binational deliberations between the States. Id. A joint exploration agreement, would allow China to exploit resources in the Philippines' EEZ, and further allow it to occupy more islands easily if it chose. Id. China has not respected agreements concerning the SCS, such as the DOC, which makes it unlikely to respect any joint exploration agreement with the Philippines. Id.
(174.) See supra note 94 and accompanying text (stating China's claims over territory in other bordering nations EEZ, including Vietnam); supra note 98 and accompanying text (discussing China conflicts with Vietnam over ownership marine territory); supra note 7 (detailing territorial conflict involving bordering nations of SCS). Although there are many countries with competing claims to territory, the most dominant and common invader is China. Ayyub, supra note 7 (describing China as most dominant in region and quest for SCS ownership). By reconciling claims with the other nations in the dispute, the Philippines would isolate China, and reinforce to the international community China's disregard for respecting international law and sustaining peace. Id. In neutralizing their competing claims, the remaining SCS bordering States will also hold a stronger position in further court proceedings or negotiations with China. Id.
(175.) See supra Part II.D.3 (explaining creation of ASEAN DOC); supra note 101 and accompanying text (discussing purpose of ASEAN for SCS nations to collaborate to maintain peace); supra note 101 and accompanying text (explaining ASEAN DOC as reaffirming ASEAN nations' commitment for U.N. Charter and UNCLOS). The DOC specifically obligated signatory States to avoid provocative expansive acts over contested territory and features within the SCS to avoid unnecessary conflict or war. What is ASEAN, supra note 101 (describing purpose of ASEAN). See supra note 102 and accompanying text (stating China's breach of ASEAN and disinterest in preserving peace and security in region). Although China ratified the ASEAN DOC, and later tried to utilize DOC commitments to overrule the PCA's jurisdiction over the dispute, China initially breached the DOC in 2012, when it forcefully seized Scarborough Shoal from the Philippines. Scarborough Shoal Standoff, supra note 102 (describing Scarborough Shoal standoff between China and Philippines). China's initial defiance to the DOC is contradicting to its current position against the PCA's jurisdiction in reinforcing its commitment to the DOC. Id. It is evident that China seeks to pick and choose provisions in accordance with its national interests. Id.
(176.) See supra notes 174-175 and accompanying texts (combining optimistic purpose of ASEAN of solidifying nations presenting China as outlaw). ASEAN sought to solidify the relations between nations of South East Asia, and provide an institutional forum for nations to bring disputes. Id.
(177.) See supra note 106 and accompanying text (stating ISA protocol for suspension in cases of serious harm to marine environment). Suspending China's ISA licenses is beyond justified, when considering China's grave disregard for the marine environment through its expansive acts in the South China Sea. Seabed Mining, supra note 106 (describing potential destructive impact of seabed mining). Dredging of coral and concrete destroyed acres of marine ecosystems. Id. See supra note 92 and accompanying text (discussing vast coral destruction due to China's island building construction). China's fishing practices and island construction led to irrevocable damage on the marine ecosystem of the SCS, constituting serious harm to the marine environment, and accordingly justifying an ISA license suspension. Id.
(178.) See supra note 91 and accompanying text (describing environmental havoc due to disregarding environmental preservation in midst of competing claims for territory); supra note 111 (reporting China's destruction of coral reefs in order to build artificial islands); supra Part III.A.1 (stating PCA's determination China's island building as violation of UNCLOS marine preservation laws); supra Part III.A.2 (describing China's continued destructive island building after PCA award).
(179.) See supra Part II.D.1 (stating significance of SCS fisheries and dependence by surrounding nations); supra note 91 (describing China's dredging resulting in degrading marine environment and increasing impact on fish stocks); supra Part II.D.5 (discussing China's intent to gain sovereignty by island building, regardless of environmental impact).
(180.) See supra note 91 and accompanying text (stating Philippines' high dependence on SCS fisheries for sustainable food source). See also supra note 84 and accompanying text (explaining high demand for fish to support bordering populations and the global market). Not only are the Philippines at risk for diminishing fisheries, but also, so is China. Snyder et al., supra note 83 (discussing risk of diminishing fisheries by SCS nations).
(181.) See supra Part II.C.3.a (describing successful bi-nationally created MPA by Israel and Jordan). The success of the Israel-Jordan MPA agreement could not have been achieved without compromise, cooperation, and commitment by both States involved in the dispute. Id. See also supra note 76 (describing importance of joint MPA management, training and regulation). The sustainability of the Israel Jordan MPA agreement is a result of collaborative efforts by both States. Id. Collaborative support will be imperative to establish multi-nationally respected MPAs throughout the SCS. Id.
(182.) See supra Part IV.C (stressing Philippines to first create solidarity with other SCS nations involved in dispute with China). In establishing a front in solidarity to settle the dispute amicably, and through UNCLOS law, the bordering nations will hold a stronger position opposing China. Id. Further, establishing solidarity and a commitment to resolve the dispute amicably would preserve a law-abiding view towards the international community, also singling out China's opposition and increasing its reputation as an outlaw. Id.
(183.) See supra note 78 and accompanying text (stating incentive for Israel and Jordan to establish MPA due to unregulated and depleted sea resources). The depleting fish stocks in the SCS contested areas and irreparable marine environment damage should incentivize SCS nations to establish MPAs, just as depleting water resources pressured Israel and Jordan in the Gulf of Aqaba. Id. Although the Gulf was a much smaller marine area, and there were only two nations involved in the dispute, the presence of many bordering States within the SCS dispute will foster continuous support for MPAs. Id. It is imperative for the SCS bordering nations to first establish amicable solidarity and neutralize their individual claims over territory, in order to foster cooperation and sustainability of MPA projects throughout the SCS. Id.
(184.) See supra note 78 and accompanying text (stating involvement of United States to assist with Israel-Jordan peace agreement and MPA); supra note 80 and accompanying text (describing additional funding for Israel-Jordan MPA by external organizations). The Israel-Jordan MPA was effective due to its support from other nations, like the United States, and sponsors, like the World Bank. Id. See also supra note 101 and accompanying text (stating creation of ASEAN for collaboration and cooperation among Member States). Along with maintaining peace and security, the goals of ASEAN to advance regional economic interests make the untainted organization suitable to collectively establish MPAs.
(185.) See supra Part II.C.3.a (detailing sustaining relationship between Israel and Jordan by forming MPA in contested waters); supra note 80 and accompanying text (exposing sustaining binational collaborative efforts as a result of establishing Israel-Jordan MPA). In neutralizing competing claims for resources, Israel and Jordan were able to foster a sustaining relationship that benefits both States in allowing them to share and regulate the resources over which they previously fought. Id. Establishing MPAs through ASEAN would similarly allow the sharing of marine resources, and protect the remaining undestroyed marine ecosystems fostering the SCS fisheries. Id. Establishing MPAs through ASEAN would likely foster a similar sustaining relationship between the SCS bordering nations, as they would have to commit to regulating the MPA collectively. Id.
(186.) See China's Position Paper, supra note 116 (stating China's undisputable position on sovereignty over contested areas); supra note 111 and accompanying text (summarizing China's great disregard for marine environment in acts of expanding sovereignty).
(187.) See China's Position Paper supra note 186 (stating China's defiance in abandoning claims of ownership in contested areas); supra note 5 and accompanying text (listing noncompliance of international law leading to reputational damage); supra note 79 and accompanying text (implying incoming support from international community as result of Israel and Jordan peace agreement). Israel and Jordan's MPA not only fostered a sustaining relationship, but gained support from the international community through the World Bank. Supra note 79 and accompanying text (discussing implementation of Israel and Jordan's MPA, which neutralized claims). Neutralizing claims in the SCS to create MPAs, especially by China, would gain great support from the international community, as the dispute has been long standing and increasingly tense in the past decades. Id.
(188.) See supra note 185 and accompanying text (advocating for neutralizing territorial claims to alternatively create sustaining multinational relationships and protection of SCS resources); supra note 80 and accompanying text (describing joint efforts by Israel and Jordan in establishing MPA). Establishing an MPA allowed Israel and Jordan to collaborate on educational programs, training, and new projects. Id. China's artificial islands could potentially provide stations for similar projects. Id.
(189.) See supra Part III.A.1 (detailing three main points in PCA award providing victorious win for Philippines); supra Part IV.C (highlighting uncertainties answered through PCA award in delegitimizing China's historic claims over SCS); supra note 114 and accompanying text (describing PCA's limitation in its deliberation). The PCA specifically avoided a determination on sovereignty claims, but sought to address specific issues on the interpretation and application of UNCLOS. Id. This resulted in clarification of longstanding issues in the dispute, which included delegitimizing China's sole claim for historic entitlement, ordering China's island building to halt, and holding China accountable for the immense environmental destruction caused by its island construction and fishing practices. Id.
(190.) See supra Part IV.B (comparing China as outlaw similar to United States in denying acceptance of ICJ judgment); supra Part IV.C (advocating for further action by Philippines post-PCA to secure solidarity with other SCS nations).
(191.) See supra Part IV.B (forbidding Philippines to initiate binational settlement with China); supra note 156 (discussing China's strategy of pressuring for only binational agreements with Philippines, to maintain a dominant position). China's defiance of the PCA's jurisdiction and award shows a clear motive to avoid any appropriate third party interference to level the dispute against the less dominant Philippines. Id. By reinforcing a commitment to negotiate only bi-nationally with the Philippines, China seeks to utilize its overarching dominant position in the region to exercise control over the contested waters. Id. Further, bi-national agreements to settle the disputed claims will likely not include any enforcement of UNCLOS law, creating issues of ambiguity and lack of structure and longstanding sustainability. Id. Any binational arrangement with China will likely include financial buyouts and further surrender of areas within the Philippines' EEZ. Id.
(192.) See supra Part IV.B (advocating global interest in stopping China from further territorial claims); supra note 160 (urging UNSC remaining members to draft resolution against China's defiance of international law); supra Part IV.C.1 (predicting option through ISA for Philippines to create leverage over China's defiance); supra Part IV.B (dismissing settlement through binational agreement and financial buyout with China).
(193.) See supra notes 90-91 and accompanying texts (detailing destruction caused by China in its pursuit for sovereignty over islands in Philippine EEZ); supra Part IV.C.2 (examining MPA as sustainable solution to preserve remaining marine ecosystems).
(194.) See supra Part IV.C.2 (explaining need for MPAs collectively recognized by all ASEAN nations, including China). Although ASEAN nations should form a front in solidarity to oppose China's continued expansive acts and defiance of international law, the ASEAN nations will require China's acceptance of creating MPAs throughout the SCS to ensure its longstanding sustainability and success. Id.
Caption: UNCLOS Maritime and Airspace Zones
Caption: D. A Brief History of China's Expansive Acts in the SCS
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|Publication:||Suffolk Transnational Law Review|
|Date:||Jun 22, 2018|
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