Although the Award clarifies littoral states’ rights and entitlements under UNCLOS regarding fishing and the exploitation of living resources in certain areas of the South China Sea, there remains controversy as China and Taiwan have indicated that the Award has no legal effect on their rights, entitlements, and activities in the maritime area. This disagreement and lack of resolution of the issue raises the possibility of three scenarios – two positive and one negative – emerging.
In the first scenario, fishing crews may feel more at ease operating in waters explicitly or implicitly determined in the Award to be within either their own countries’ territorial waters and exclusive economic zones (EEZs) or international waters, where they are, in theory, protected under international law. This would allow them to focus on the economic, instead of the political, aspects of their activities.
In the second scenario, fishing crews may be more hesitant to venture into other countries’ EEZs or territorial waters, which could reduce the risk of incidents at sea.
In the third scenario, fishing crews may be galvanized into taking action to defend their country’s interests by operating in areas that are still in dispute but were determined by the Tribunal to be within the Philippines’ EEZ. These fishing operations could increase the likelihood of engagement with law enforcement or military forces.
Time will tell which of these three scenarios most often presents itself in the post-arbitration South China Sea context.