Tribunal’s blunt ruling against China fuels South China Sea tensions – Nikkei Asian Review


New Philippine President Rodrigo Duterte campaigning in Angeles City on March 19 2016 ,  prior to the May 9 2016 elections (Photo: Simon Roughneen)

New Philippine President Rodrigo Duterte campaigning in Angeles City on March 19 2016 , prior to the May 9 2016 elections (Photo: Simon Roughneen)\


TOKYO/JAKARTA — China’s claims to historical rights in the South China Sea have no legal basis, an international tribunal at The Hague ruled on Tuesday. In the first international ruling on artificial islands and military facilities built by Beijing in the disputed waters, the tribunal sided with the Philippines, flatly denying China’s historic claim to the “nine-dash” line, which encompasses most of the sea.

A panel of five judges at the Permanent Court of Arbitration in The Hague in the Netherlands also noted that no maritime feature claimed by China along the Spratly Islands constitute a fully entitled island, and therefore cannot generate an exclusive economic zone or a continental shelf.

The tribunal, established under the United Nations Convention on the Law of the Sea, said there was “no evidence” China had historically exercised exclusive control over the waters in the South China Sea or its resources. Moreover, the tribunal said any historical rights “were extinguished” when the U.N. convention established EEZs.

The Philippines welcomed the ruling, known as an “award,” which it described as a “milestone decision” and “an important contribution to ongoing efforts in addressing disputes in the South China Sea.”

However, in keeping with the pledge by the country’s new President Rodrigo Duterte not to flaunt any positive ruling and to rebuild relations with China, a statement by the Philippine foreign ministry merely “welcomed” the tribunal’s ruling. The closely watched decision came more than three years after Manila sought international arbitration over China’s moves in the South China Sea.

The Chinese government quickly dismissed the tribunal’s findings as “null and void,” saying that China’s presence in the South China Sea dates back 2,000 years. It said that makes China the first country to have “exercised sovereignty and jurisdiction” over islands in the sea, and establishing “relevant rights and interests” in the waters.

China had previously stated it would not acknowledge the tribunal’s findings and had questioned the impartiality and qualifications of some of the tribunal members — despite being a signatory to UNCLOS, which was used by the tribunal to assess Manila’s case.

The U.S. reaction would also be closely watched. The U.S. has described the ruling as “legally binding” even though it has not ratified UNCLOS.

“We encourage claimants to clarify their maritime claims in accordance with international law, as reflected in the Law of the Sea Convention,” said John Kirby, a State Department spokesperson.

The tribunal’s July 12 decision noted that “certain sea areas are within the exclusive economic zone of the Philippines, because those areas are not overlapped by any possible entitlement of China.” That in turn meant, according to the tribunal, that some of China’s actions in the region in recent years were out of bounds.

“Having found that certain areas are within the exclusive economic zone of the Philippines, the Tribunal found that China had violated the Philippines’ sovereign rights in its exclusive economic zone by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to prevent Chinese fishermen from fishing in the zone,” the tribunal stated.

Harsh decision

Some international legal experts noted the tough line taken by the tribunal. “This was an extremely harsh judgment toward China,” said Makoto Seta, an associate professor at Yokohama City University. “The Philippines’ claims were almost fully accepted [by the judges].”

Rory Medcalf, head of the National Security College at the Australian National University, said the ruling was “a more sweeping and damning condemnation on China’s position than anybody expected.”

“China will be embarrassed internationally on this issue and I think it would have been much more sensible for China to have established a more moderate stance at an earlier stage,” he added, noting that the emphasis of the ruling on China’s environmental destruction in the area “makes it clear that [the award] is much more than a security issue but about the global common concerns.”

Japan, which has separate territorial disputes with China in the East China Sea, said on Tuesday that the tribunal’s ruling on the South China Sea was “final and legally binding,” and warned that all parties were required to comply.

China’s claim to the sea puts it at odds with some other countries that are also asserting sovereignty, particularly Vietnam.

The Vietnamese foreign ministry said that Hanoi “strongly supports solving disputes in the East Sea [the Vietnamese name for the South China Sea] by peaceful means, including diplomatic and legal processes, refraining from using or threatening to use force, in accordance with international law and UNCLOS.”

Other claimants include Brunei, Malaysia and Taiwan. China has also sparred with Indonesia after Jakarta arrested Chinese fishermen operating close to Indonesia’s Natuna Islands, where Indonesian waters appear to overlap with China’s “nine-dash line” claim to the South China Sea.

Following the ruling, Taiwan’s presidential spokesman Alex Huang reiterated Taipei’s claim to the Spratly Islands and their surrounding waters. Huang said that Taipei will be dispatching a Lafayette-class frigate to patrol the Spratlys on Wednesday, a day earlier than originally scheduled.

Taiwan was not consulted during the arbitration process, and the ruling has significantly undermined the island’s claim over the disputed waters, Huang added.

“We will not accept the tribunal’s decision … and the ruling is not legally binding for the Republic of China,” he told reporters, referring to Taiwan’s official name. “We will definitely defend our territory and sovereignty, and we will not allow anything to undermine our national interests.”

Euan Graham, international security program director at the Sydney-based Lowy Institute for International Policy, said that while disputes over the South China Sea will linger, Tuesday’s ruling would “hopefully inject some clarity into the legal entitlements of the various claimants.”

Regional governments were quick to issue statements. The Singapore foreign ministry said in a statement that the country supported the peaceful resolution of disputes in accordance with universally recognized principles of international law. “As a small state, we strongly support the maintenance of a rules-based order that upholds and protects the rights and privileges of all states,” it noted.

The Indonesian government urged all parties to refrain from “engaging in activities that may raise tension, and to continue to safeguard the Southeast Asian region from military activities that may harm stability and peace.”

Looking ahead, the ANU’s Medcalf said the solidarity between the 10 member countries of the Association of Southeast Asian Nations would be key to persuading China to abide by the ruling. He emphasized that ASEAN “should agree on a collective statement” to call upon China to respect the tribunal award.

However, notable obstacles remain before ASEAN can take concerted action, he admitted. For example, the ruling could put “unbearable pressure on ASEAN solidarity,” because China would wield its influence over friendly states such as Cambodia and Laos into obstructing the bloc’s opposition to China’s territorial claims.  On the other hand, ASEAN ties could strengthen if Indonesia takes the lead inin standing up to China on this issue. The legal support provided by the ruling “gives Indonesia an obvious hook” to stand against China, Medcalf said.

While it was long expected that the tribunal would rule against China, questions remain over what China would do next. There is speculation that it could declare an Air Defense Identification Zone over the South China Sea, requiring aircraft entering the area to report to the Chinese authorities. That would raise the stakes with the U.S., which has flown military aircraft over China-claimed parts of the sea in recent months.

“This will not calm down anything in the South China Sea. Tensions are rising,” said Ashley Townshend, a research fellow at the University of Sydney. “This is one of the worst outcomes Beijing could have expected. The law doesn’t provide much room for negotiation between China and other claimants going forward.”

By Ken Moriyasu, Nikkei deputy editor and Simon Roughneen Asia regional correspondent. With reporting by Shane Worrell in Melbourne, Cliff Venzon in Manila, Tomomi Kikuchi and Mayuko Tani in Singapore, Debby Wu and Wu Li-ling in Taipei, Erwida Maulia in Jakarta and Kim Dung Tong in Ho Chi Minh City.

What is the Permanent Court of Arbitration?

The Permanent Court of Arbitration is an intergovernmental organization set up in 1899 as “the first global mechanism for the settlement of disputes between states” — when diplomacy or other means fail.

Despite the name, the PCA is not really a court, “but a permanent framework for arbitral tribunals constituted to resolve specific disputes.”

The PCA has 121 Member States and facilitates arbitration, conciliation, fact-finding, and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties.

China and the Philippines have acceded to the PCA, but Asian countries such as Indonesia, Mongolia and Myanmar have not.

The PCA has arbitrated 12 cases related to the United Nations Convention on the Law of the Sea, including the proceedings instituted by the Philippines against China in January 2013. 3 cases are pending.

Decisions taken by the tribunals set up under the PCA are binding but there is no way to enforce rulings, known as “awards.”

The PCA is one of many international courts and tribunals which, according to the United Nations, “range from the International Court of Justice, which is a principal organ of the organization; to the ad hoc criminal tribunals established by the Security Council; to the International Criminal Court and the International Tribunal for the Law of the Sea.”

The PCA’s International Bureau is based in The Hague, where it shares a building with the ICJ.

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