In a widely anticipated, though purely symbolic decision, just over an hour ago a UN tribunal, the Permanent Court of Arbitration in The Hague, ruled unanimously in favour of the Philippines in its case against China’s extensive claims in the South China Sea. It found that China’s claim to historic rights in most of the South China Sea has no legal basis, dealing a setback to Beijing which, as the WSJ adds, the U.S. fears could intensify Chinese efforts to establish its control by force. And, as was just as expected, China promptly announced it does not accept or recognize the ruling by tribunal, Xinhua reported moments after the decision.
The Philippines first brought the case to the International Tribunal for the Law of the Sea at The Hague in 2013, raising 15 instances in which it held China’s claims and activity in the South China Sea had violated international law, writes Hudson Lockett. In 2015 the tribunal decided it had jurisdiction on seven of those, though it said it was still considering the other eight. The tribunal at the Permanent Court of Arbitration in The Hague said China couldn’t claim historic rights to resources in the waters within a “nine-dash” line used by Beijing to delineate its South China Sea claims.
That was the most significant element of an unprecedented legal challenge to China’s claims that was brought in 2013 by the Philippines, one of five governments whose claims in the South China Sea overlap with China’s under the nine-dash line.
In a second blow for Beijing, the tribunal decided that China wasn’t entitled to an exclusive economic zone, or EEZ, extending up to 200 nautical miles from one island in the Spratlys archipelago, Itu Aba, which is claimed by China and currently controlled by Taiwan. The clearly politically-motivated decision, based on a U.N. convention on maritime law, comes after several years of escalating tension in the region as China has alarmed the U.S. and its allies by using its rapidly expanding naval and air power to assert territorial claims and challenge U.S. military supremacy in Asia.
The Philippines case is seen as a test of China’s commitment to a rules-based international order which the U.S. and its allies say has been undermined by Beijing’s recent military activities, including construction of seven fortified artificial islands in the South China Sea. The ruling on Itu Aba is important because the U.N. maritime convention allows countries to build artificial islands in their own EEZs, and all of the seven structures China has built lie within 200 nautical miles of Itu Aba, which Taiwan calls Taiping Island. It also means that China has no legal claim to an EEZ overlapping that of the Philippines.
In a statement published on a verified social media feed just before the ruling, China’s Ministry of Defense said the decision wouldn’t affect its approach in the South China Sea.
“No matter what the result of the arbitration, the Chinese military will unswervingly protect the nation’s sovereignty, security and maritime rights, resolutely protect the safety and stability of the region, and face down all manner of threats and challenges,” it said. After the ruling, the ministry referred to the comment as its official statement.
China didn’t take part in the tribunal, which it said had no jurisdiction on the case, and Chinese officials have said repeatedly in recent weeks that Beijing won’t comply with the ruling.
In a series of public statements after the ruling, Beijing made it very clear that it has no intention of abiding by the ruling, in the process making a confrontation even more probable:
Unilateral initiation of #SouthChinaSea arbitration by the Philippines is out of bad faith, violates int’l law
https://t.co/jxR0T7JKbE— China Xinhua News (@XHNews) July 12, 2016
China does not accept any means of third party dispute settlement or any solution imposed on China. #SouthChinaSea https://t.co/RBTfkj1oWd
— China Xinhua News (@XHNews) July 12, 2016
Most importantly, while the ruling is legally binding for China and the Philippines – and China has already said it won’t be bound – it can only be enforced through international pressure, and/or force.
As the WSJ adds, in the tense buildup to the ruling, a U.S. aircraft carrier strike group and other navy ships have been patrolling in the South China Sea, while China held military exercises in the area over the last seven days. The U.S. and its allies, including all of the Group of Seven large industrialized democracies and the 28 members of the European Union, have publicly expressed their support for the arbitration process.
In another damaging setback for Beijing, the tribunal ruled that China couldn’t claim 12 nautical miles of territorial seas around the two largest of the seven artificial islands that Beijing has built in the Spratlys. That means that U.S. and foreign naval ships can legally come within 12 nautical miles of those two structures, Mischief Reef and Subi Reef, which both have airstrips.
The tribunal ruled that China had violated the Philippines sovereignty in its EEZ by building artificial islands, interfering with Philippine fishing and oil exploration and failing to prevent Chinese fishing boats from operating there.
It said China had interfered with Philippine fishing boats exercising their traditional fishing rights around the disputed Scarborough Shoal. It said China hadn’t fulfilled its legal obligation to stop Chinese fishermen from harming the environment in the South China Sea. And it said China’s island building had violated the obligations of a state during the dispute resolution process.
The Philippines welcomed the ruling. Foreign Secretary Perfecto Yasay called it a “milestone” in efforts to address regional disputes and called on “those concerned to exercise restraint and sobriety.”. The case was brought by the previous Philippine government. New Philippine President Rodrigo Duterte has taken a different stance, suggesting that he might be willing to negotiate directly with China.
China says dozens of countries—many of them small, developing nations—support its position, although only a handful of them have issued their own statements explicitly backing Beijing’s right to ignore the tribunal.
China’s foreign ministry issued the following statement moments ago in response to the ruling (excerpted):
Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines
With regard to the award rendered on 12 July 2016 by the Arbitral Tribunal in the South China Sea arbitration established at the unilateral request of the Republic of the Philippines (hereinafter referred to as the “Arbitral Tribunal”), the Ministry of Foreign Affairs of the People’s Republic of China solemnly declares that the award is null and void and has no binding force. China neither accepts nor recognizes it.
The unilateral initiation of arbitration by the Philippines is out of bad faith. It aims not to resolve the relevant disputes between China and the Philippines, or to maintain peace and stability in the South China Sea, but to deny China’s territorial sovereignty and maritime rights and interests in the South China Sea.
China’s territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected by those awards. China opposes and will never accept any claim or action based on those awards.
The Chinese government reiterates that, regarding territorial issues and maritime delimitation disputes, China does not accept any means of third party dispute settlement or any solution imposed on China. The Chinese government will continue to abide by international law and basic norms governing international relations as enshrined in the Charter of the United Nations, including the principles of respecting state sovereignty and territorial integrity and peaceful settlement of disputes, and continue to work with states directly concerned to resolve the relevant disputes in the South China Sea through negotiations and consultations on the basis of respecting historical facts and in accordance with international law, so as to maintain peace and stability in the South China Sea.
Ironically, in attempting to stem China’s territorial expansions in the region, the tribunal will likely just provoke Beijing even more: U.S. officials have warned that China could respond to the ruling by starting land reclamation at another disputed reef near the Philippines, or declaring an air defense identification zone over the South China Sea. China hasn’t announced any such plans, but says it has the right to do both.
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