Understanding the South China Sea Verdict

Understanding the South China Sea Verdict

On July 12, International Tribunal for the Law of the Sea (ITLOS)  in The Hague ruled that China’s sovereignty claims over the South China Sea, and its aggressive attempts to enforce them, violate international law. It is a decision that comes with no enforcement measures, so its effect will depend on how China’s neighbours and the United States respond. China has declined to conform to the verdict, saying it does not have jurisdiction to decide on the matter and that the verdict would be “nothing but a piece of paper.”

The Permanent Court of Arbitration at The Hague has delivered what is, on its face, a landmark ruling that undermines China’s claim to vast swathes of the South China Sea. The Philippines, which under former president Benigno Aquino III requested arbitration with China in 2013 following a flare-up between the two countries over the Scarborough Shoal, has had an historic win in the arbitration founded upon the provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal accepted 14 of the 15 claims made by the Philippines in a unanimous award that will set the benchmark for the future resolution of all remaining South China Sea maritime disputes and have implications for all of Southeast Asia.

In bringing the claim the Philippines also sought to directly challenge China’s assertion of its “Nine Dash Line” which appears on Chinese maps of the South China Sea that encircles much of the region and overlaps areas of the sea claimed by the Philippines, Vietnam, Malaysia, Indonesia and Brunei.

The Philippines also sought to directly challenge Chinese assertion of sovereign rights over the South China Sea based upon claims over very small islands, islets, reefs and shoals, especially those located in the Spratly Islands group.

Finally, the Philippines also challenged China’s land reclamation and island building activities throughout the region on the grounds that China had no legitimate basis to undertake those activities which the Philippines argued was causing significant environmental impact.

In considering the “Nine Dash Line,” the Tribunal had to first assess a 2006 Chinese Declaration indicating that it did not accept any of the procedures for dispute resolution under the Convention with respect to “historic bays or titles”. This raised issues as to whether elements of China’s disputes with the Philippines would fall within this exception, including what precisely are the historic titles that China asserts in the South China Sea.

The Philippine’s claim also raised issues with respect to South China Sea territorial disputes between the Philippines and China, which substantively would have been beyond the jurisdiction of the Tribunal.

In China’s written statements released by way of a December 2014 Foreign Ministry Paper, China argued that “the essence of the subject-matter of the arbitration is territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention”.

However both the 2016 Award and a previous 2015 Award of the Tribunal that solely addressed issues of jurisdiction dismissed China’s objections on this ground and made clear that the decision does not directly address any of the territorial disputes that exist in the South China Sea. While China’s claims that the Tribunal lacked jurisdiction on this basis were therefore dismissed, the territorial disputes remain a live issue.

The first appearance of China’s Nine Dash Line with apparent official Chinese government endorsement was in a government internal atlas in 1947, which was then published as a Chinese atlas in 1948.

The Line attained modern significance when China lodged a diplomatic note with the UN in 2009 that directly referred to its claim. On this point, the Tribunal conclusively resolved that China’s claims to the Line based on assertions of historic rights, sovereign rights or jurisdiction, are unlawful. On its own, this decision could significantly rewrite the maritime discourse in the South China Sea given that the Nine Dash Line has been such a dominant basis of China’s assertions to maritime entitlements in the region in the past decade.

The Tribunal additionally handed down significant rulings that none of the disputed maritime features in the Spratly Islands in their natural condition, including Scarborough Shoal, Gaven Reef and Fiery Cross Reef are to be equated with islands for the purposes of the law of the sea and, as a result, do not generate entitlements to a 200 mile exclusive economic zone or continental shelf. In doing so the Tribunal confirmed that Mischief Reef and Second Thomas Shoal — which has, in recent years, been the scene of a standoff between the Philippines military and Chinese government vessels — are within the Philippines maritime domain and not that of China.

When turning to China’s controversial land reclamation and island building activities in the South China Sea, the Tribunal found these activities had caused irreparable harm to the coral reef ecosystem and breached obligations under six provisions of the Convention. In the case of these activities at Mischief Reef, the Tribunal directly found that China had breached Articles 60 and 80 of the Convention by undertaking land reclamation without the authorisation of the Philippines and in violation of Articles 60 and 80 of the Convention.

The measured response to date from the Philippines is reassuring that calmer heads may prevail as the dispute moves into its next phase. While the decision is final and binding there are no clear mechanisms for its implementation. The Tribunal did not order China to vacate the islands, rocks, and reefs that it has occupied. There is no international police force to enforce the judgement. Ultimately it will come down to how the Philippines and China decide to resolve their South China Sea disagreements through diplomacy and negotiation.

China’s Stance

The South China Islands have been China’s territory since ancient times. To challenge China’s sovereignty over the islands, the Philippines unilaterally filed an arbitration case in 2013 at the Tribunal.

The Philippines claims that it only wants the arbitral tribunal to rule on the status and maritime entitlements of relevant features in the Nanshan Islands. Sovereignty issues, under the UN Convention on the Law of the Sea (UNCLOS), are beyond the jurisdiction of the arbitral tribunal. China has also validly excluded delimitation disputes in a declaration in 2006.

A day after filing the arbitration in 2013, the Philippine foreign ministry said the purpose of the case is to “protect our country’s territory and oceanic area” and vowed not to “give up our country’s sovereignty.”

The Philippines, which has never engaged in any negotiation with China regarding an arbitration, has breached UNCLOS Article 283 by unilaterally taking its case to an international tribunal.

The arbitral tribunal’s reception of the South China Sea sets a bad example in settling international disputes because the case is beyond the tribunal’s jurisdiction.

The selection of the members of the tribunal is highly questionable. Most of them were picked by Shunji Yanai, a famous Japanese right-winger, who in 2014 presented a report to Japanese Prime Minister Shinzo Abe to consider lifting the ban on Japan sending its military overseas.

The South China Sea has enjoyed decades of peace and commercial prosperity, but has seen a more complex security situation and escalated tensions since the unilateral filing in 2013 by the Philippines and supported by countries outside the region.

No matter what the verdict, the illegal nature of the arbitration will make it null and void. China’s stand of neither participating in, nor accepting the arbitration, and neither recognizing, nor honoring the verdict not only safeguards its core interests but also international law.

The Chinese Foreign Ministry has reiterated that the door to dialogue remains open to the Philippines on the basis of respecting historical facts and in accordance with international law.

Article 60

Artificial islands, installations and structures in the exclusive economic zone

1. In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of:

(a) artificial islands;
(b) installations and structures for the purposes provided for in Article 56 and other economic purposes;
(c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.

2. The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations.

3. Due notice must be given of the construction of such artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained. Any installations or structures which are abandoned or disused shall be removed to ensure safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organization. Such removal shall also have due regard to fishing, the protection of the marine environment and the rights and duties of other States. Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed.

4. The coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures.

5. The breadth of the safety zones shall be determined by the coastal State, taking into account applicable international standards. Such zones shall be designed to ensure that they are reasonably related to the nature and function of the artificial islands, installations or structures, and shall not exceed a distance of 500 metres around them, measured from each point of their outer edge, except as authorized by generally accepted international standards or as recommended by the competent international organization.

Due notice shall be given of the extent of safety zones.

6. All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones.

7. Artificial islands, installations and structures and the safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.

8. Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.

Article 80

Artificial islands, installations and structures on the continental shelf

Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf.

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