The Spratly Islands as a Single Unit in the 12 July 2016 Award of the Arbitral Tribunal in the Philippines/China South China Sea Arbitration and Its Implications on the Superjacent Airspaces of the Relevant Areas of the South China Sea

Abstract

The arbitral tribunal in the Philippines/China South China Sea Arbitration Case considered the People’s Republic of China’s (PRC’s) position that the Spratly Islands in the South China Sea (SCS) should be treated as a whole or as a single unit. When it handed down the final award on 12 July 2016, the tribunal concluded that, to the extent of understanding the position as allowing the use of straight baselines to enclose the Spratly Islands for purposes of generating maritime entitlements as a single unit, the current state of international law neither allows the PRC, a continental state, nor the Philippines, an archipelagic state, to employ such an approach with respect to dependent or offshore mid-ocean island groups or archipelagos. While some authors agree with the conclusion, others argue that the tribunal should have carefully examined and discussed the progressive development of the state practice on the use of straight baselines to offshore dependent island groups and archipelagos. But one young scholar, in particular, contends that the tribunal should have looked into the treaty basis of the treatment of the Spratly Islands as a single unit under the 1951 San Francisco Peace Treaty. This paper takes the position that even if the treaty basis for treating the Spratly Islands as a single unit were examined by the tribunal, the tribunal would nonetheless have arrived at substantially the same conclusion. The critical factor to this assertion lies in understanding what exactly was the Spratly Islands the claim, right, and title to which Japan was made to renounce under the 1951 San Francisco Peace Treaty. A part of the answer may lie in the undated memorandum of the Japanese Embassy to the United States Department of State which the Counselor of the Japanese Embassy left with the Chief of the Division of the Far Eastern Affairs on 31 March 1939 and the United States corresponding response. Another part of the answer may rest in the maritime entitlements of the Spratly Islands allowed under the international law at the time. But the remainder of the explanation may nevertheless take into account the subsequent development of the law of the sea as substantively reflected in its current form in the 1982 United Nations Convention on the Law of the Sea.