Dlivering a sweeping moral victory for the Philippines, an international tribunal ruled Tuesday that China’s claims to “historic rights” across a vast expanse of the South China Sea are invalid.
The Permanent Court of Arbitration in The Hague, Netherlands,also said that no land formations in the South China Sea – whoever controls them – are big enough to warrant exclusive maritime zones beyond 12 miles.
The five-judge panel said China’s island-building activities violated the U.N. Convention on the Law of the Sea, as did its moves to deny Filipinos access to traditional fishing grounds. The panel also rapped China for environmental destruction it said was a breach of UNCLOS.
The panel was not deciding directly on matters of sovereignty in the South China Sea and which countries should control what reefs, shoals and other outcroppings in the region. In addition to China and the Philippines, Taiwan, Vietnam, Malaysia and Brunei have various claims in the area, a vast expanse rich in fish as well as other natural resources including oil and gas.
Instead, the court was ruling on questions including whether a number of disputed land masses in the area should be considered islands, rocks or “low tide elevations.” Those designations are important because under UNCLOS, they affect what kind of territorial or economic rights go with the features.
For example, if something is considered an island capable in its natural form of sustaining human habitation, the country controlling it would be entitled to 12 nautical miles of territorial waters and a 200-mile economic exclusion zone. But if it is a “low tide elevation,” which is submerged during high tide, it’s entitled to no territorial waters.
The court ruled that no features in the area were, in their natural state, anything bigger than rocks, and thus none were entitled to maritime zones bigger than 12 miles.
Although the ruling was a win for Manila, which brought the case in 2013, it was unclear what would happen next because Beijing boycotted the proceedings and said it would ignore the ruling. Both China and the Philippines are signatories to UNCLOS, but the tribunal has no powers of enforcement.
There is no way for The Philippines to immediately enforce the ruling, and only time will tell what practical effect it might have. Experts said it could force Manila and Beijing back to the negotiating table.
There are precedents. In the 1980s, the United States fought such a case brought by Nicaragua, objecting to an international court’s jurisdiction. But after the court ruled it had jurisdiction and found in Nicaragua’s favor, Washington did end up bargaining with Nicaragua and settling the matter. A more recent case saw Mauritius take the United Kingdom to a tribunal and win, even though London objected to the proceedings. The U.K. has since indicated it is open to negotiations with Mauritius.
Philippine Foreign Secretary Perfecto Yasay hailed the ruling a “milestone decision” and said his government’s experts were studying the ruling “with the care and thoroughness that this significant arbitral outcome deserves. In the meantime, we call on all those concerned to exercise restraint and sobriety.”
Philippine President Rodrigo Duterte called a Cabinet meeting Tuesday evening after the decision was released.
China’s Foreign Ministry denounced the ruling. China “solemnly declares that the award is null and void and has no binding force. China neither accepts nor recognizes it,” the ministry said in a statement. It said Manila’s “unilateral initiation of arbitration” manifested “bad faith,” and it called the tribunal “unjust and unlawful.”
The People’s Daily, the official Communist Party mouthpiece, quoted President Xi Jinping as saying Tuesday that the islands in the South China sea “had been part of the territory of China since ancient times and that its maritime rights “are not influenced by the verdict under any circumstances.”
But Paul Reichler, lead counsel of the Philippines’ legal team from the U.S.-based firm Foley Hoag, said the decision benefited not only the Philippines but also other states affected by China’s sweeping claims in the region. He said it was now up to these neighboring states, such as Malaysia, Vietnam and Indonesia, to “vigorously assert their rights.” One way to do so would be to file similar cases against Beijing.
While China’s rhetoric has been aimed at “intimidating its neighbors and dissuading them” from challenging Beijing, he said, “you may see a different response from China in six months, a year or two years” if other countries follow Manila’s lead and push back.
The case was decided by a five-judge panel with members from Ghana, France, Poland, the Netherlands and Germany.
China refused to participate in the proceedings, sending no one to argue its case. Beijing said that the dispute was, at its heart, about sovereignty – a question beyond the purview of the tribunal.
At the center of the fight is what Beijing calls the “nine-dash line,” a U-shaped area of demarcation dipping far off the mainland’s southern coast, sweeping east of Vietnam, down near Malaysia and Brunei, and then looping back up west of the main Philippine islands. The loop encompasses the Paracel and Spratly islands and Scarborough Shoal.
Though China never explicitly defined what privileges it believes it has within the nine-dash line, it has asserted “historic rights” across this huge swath of sea. In the last few years, it has engaged in massive engineering projects inside this line, turning formerly small reefs into land masses large enough to host landing strips and other facilities.
The Philippines is worried that China has been creating new facts on the ground and will eventually assert full sovereignty and control over all the land, water, seabed, atolls and shoals within that nine-dash line.
Despite the ruling, the Philippines, its allies in Washington, and other Southeast Asian states may find it very hard to reduce China’s presence in the South China Sea, experts said.
“Possession is 9/10 of the law and it will be difficult to get China to relinquish control of any of the facilities it has established,” said Eric Shimp, a trade and regulatory policy advisor with the law firm Alston & Bird. “It might be best to think of this as the beginning of a prolonged negotiation phase.”
John Kirby, a U.S. State Department spokesman, called the decision “an important contribution to the shared goal of a peaceful resolution to disputes in the South China Sea.”
“The United States expresses its hope and expectation that both parties will comply with their obligations.”
China has called for questions of sovereignty to be decided in one-on-one talks with each of the nations that have claims in the region. Unless sovereignty over those reefs and shoals is first determined, China contends, the issue of who may exercise the maritime rights and entitlements around them could not be resolved.
Summarizing its decision in a statement, the tribunal said China has no legal basis to claim historic rights to resources within the nine-dash line.
“Although Chinese navigators and fishermen … had historically made use of the islands in the South China Sea, there was no evidence that China had historically exercised exclusive control over the waters or their resources,” the court said. The court added that even if China had such rights, they were essentially extinguished when it signed on to UNCLOS.
In another blow to Beijing, the tribunal concluded that none of the Spratly Islands are – in their natural state – capable of supporting human habitation. Therefore, the tribunal said, none of the features were entitled to a 200-mile economic exclusion zone. Only in such zones are countries entitled to build artificial islands.
Furthermore, the tribunal found that it could — without delimiting a boundary — “declare that certain areas in the South China Sea are within the exclusive economic zone of the Philippines, because those areas are not overlapped by any possible entitlement of China.”
Based on that finding, the tribunal ruled that China had violated the Philippines’ sovereign rights in its exclusive economic zone. Among the violations, it said, were interfering with Philippine fishing and petroleum exploration; constructing artificial islands; and failing to prevent Chinese fishermen from fishing in the zone.
The tribunal said Chinese law enforcement vessels had “unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.”
And the court said China’s construction of artificial islands on seven outcroppings in the Spratly Islands “had caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems.”
The panel said “Chinese authorities were aware that Chinese fishermen have harvested endangered sea turtles, coral, and giant clams on a substantial scale in the South China Sea (using methods that inflict severe damage on the coral reef environment) and had not fulfilled their obligations to stop such activities.”
The tribunal also scolded China for its “large-scale land reclamation and construction of artificial islands,” finding it “incompatible with the obligations on a state during dispute resolution proceedings, insofar as China has inflicted irreparable harm to the marine environment, built a large artificial island in the Philippines’ exclusive economic zone, and destroyed evidence of the natural condition of features in the South China Sea that formed part of the parties’ dispute.”
The panel said that because China had conducted such extensive artificial expansion of reefs, it had to consult historical materials to determine their natural conditions.
Lawrence Martin, another member of the Philippines’ legal team, said the tribunal’s ruling on the environmental questions was significant.
“This is the first time that an international court or tribunal has put teeth in [UNCLOS] provisions relating to environmental protection,” he said. “States should be on notice that they can expect to be held to their obligation to protect and preserve the marine environment in the world’s oceans and seas.”
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