The South China Sea Tribunal ultimately determined that Subi Reef, Gaven Reef
(South), Hughes Reef, Mischief Reef and Second Thomas Shoal were low-tide
elevations. Other features contested by the Philippines, Scarborough Shoal, Gaven
Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef,
were ruled to be, in their natural condition, ‘rocks’ within the meaning of Article 121
(3). To ensure that there was no possibility of an overlapping Chinese maritime
claim that would put the Philippines’ claims outside jurisdiction, the Tribunal further
considered the status of other high-tide features in the Spratly Island group. It
concluded that none of Itu Aba, Thitu, West York, Spratly Island, South-West
Cay, and North-East Cay were capable of sustaining human habitation within the
meaning of Article 121(3).
56 Hence, they were also rocks only entitled to a territorial
sea and contiguous zone.
4.2 Stakeholders in the Decision: China and the Philippines
In reaching this decision, the two immediate stakeholders were the Philippines and
China as the parties to the case. In classifying its interests, China clearly had power,
both coercive as a strong military actor with a history of demonstrating that military
strength,
57 and utilitarian because it had the financial and material resources to
develop the features and potentially underline their characterisation as fully-entitled
islands rather than rocks. China also could be viewed as having normative power for
two reasons. First, its engagement with international law in justifying its claims
through its assertion of sovereignty over the disputed land features and its consistent
view as to its authority over the features at issue and the adjacent waters as a matter
of international law. Second, China’s assertion of extended maritime zones over
these small land features is arguably consistent with the practice of other coastal
states that have sovereignty over small island features and relied upon these claims
as consistent with their interpretation of UNCLOS in asserting maritime rights and
delimiting maritime boundaries.
The Philippines’ power was normative only, as the actor seeking to uphold the
rules-based order established under UNCLOS through the UNCLOS dispute settlement processes. This symbolic power arguably emerges in the dynamic of an actor
asserting legal rights in defiance of another actor that has coercive and utilitarian
power.
58
Both the Philippines and China could also make claims as to the urgency of their
interests in this aspect of the dispute. China’s urgency was reflected in its accelerated
56 South China Sea Arbitration (Award), para. 621.
57 See, e.g., The Guardian (2015).
58 See discussion of the Philippines’ strategy in Talmon (2014), p. 72 (‘More important than
winning the case seems the opportunity for the Philippine Government to publicise its case against
China to the world.’).
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N. Klein
(South), Hughes Reef, Mischief Reef and Second Thomas Shoal were low-tide
elevations. Other features contested by the Philippines, Scarborough Shoal, Gaven
Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef,
were ruled to be, in their natural condition, ‘rocks’ within the meaning of Article 121
(3). To ensure that there was no possibility of an overlapping Chinese maritime
claim that would put the Philippines’ claims outside jurisdiction, the Tribunal further
considered the status of other high-tide features in the Spratly Island group. It
concluded that none of Itu Aba, Thitu, West York, Spratly Island, South-West
Cay, and North-East Cay were capable of sustaining human habitation within the
meaning of Article 121(3).
56 Hence, they were also rocks only entitled to a territorial
sea and contiguous zone.
4.2 Stakeholders in the Decision: China and the Philippines
In reaching this decision, the two immediate stakeholders were the Philippines and
China as the parties to the case. In classifying its interests, China clearly had power,
both coercive as a strong military actor with a history of demonstrating that military
strength,
57 and utilitarian because it had the financial and material resources to
develop the features and potentially underline their characterisation as fully-entitled
islands rather than rocks. China also could be viewed as having normative power for
two reasons. First, its engagement with international law in justifying its claims
through its assertion of sovereignty over the disputed land features and its consistent
view as to its authority over the features at issue and the adjacent waters as a matter
of international law. Second, China’s assertion of extended maritime zones over
these small land features is arguably consistent with the practice of other coastal
states that have sovereignty over small island features and relied upon these claims
as consistent with their interpretation of UNCLOS in asserting maritime rights and
delimiting maritime boundaries.
The Philippines’ power was normative only, as the actor seeking to uphold the
rules-based order established under UNCLOS through the UNCLOS dispute settlement processes. This symbolic power arguably emerges in the dynamic of an actor
asserting legal rights in defiance of another actor that has coercive and utilitarian
power.
58
Both the Philippines and China could also make claims as to the urgency of their
interests in this aspect of the dispute. China’s urgency was reflected in its accelerated
56 South China Sea Arbitration (Award), para. 621.
57 See, e.g., The Guardian (2015).
58 See discussion of the Philippines’ strategy in Talmon (2014), p. 72 (‘More important than
winning the case seems the opportunity for the Philippine Government to publicise its case against
China to the world.’).
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N. Klein