|#1608||3650||July 14, 2016||By Dr Rajeev Kumar|
The United Nations’ arbitration court, in a landmark ruling, has dismissed China’s territorial claims in the South China Sea, saying it has “no historic title” to the vast maritime region which is valuable because of $5 trillion worth of global trade passing through it. The court declared that “although Chinese navigators and fishermen, as well as those of other states, 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”[i]. 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 also held that fishermen from the Philippines (like those from China) had traditional fishing rights at Scarborough Shoal and that China had interfered with these rights in restricting access. The tribunal further held that Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels”[ii].
Hague-based Permanent Court of Arbitration’s ruling comes as an answer to a complaint filed by the Philippines in 2013 which had accused Beijing of violating the Annex VII of the UN’s Convention on the Law of the Sea (UNCLOS) with its aggressive overture on the Scarborough Shoal, a reef located about 225 kilometres off the Philippine coast. Manila asserted that China’s maritime map of the South China Sea was of dubious pedigree. The Permanent Court of Arbitration said Beijing’s claim of virtual sovereignty over nearly all the South China Sea under a so-called “nine-dash line” that stretches from the southern China coast runs contrary to UNCLOS[iii]. It declared large areas of the sea to be neutral international waters. The Hague court also ruled that none of the Spratly Islands granted China an exclusive economic zone, and that its construction activities on Mischief Reef caused “irreparable harm” to the reef’s ecosystem[iv].
In recent years, China had been making massive land seizure and rebuilding numerous reefs into artificial lands throughout the South China Sea for its military installations and at the same time ignored competing claims over the region by different neighboring countries, including Philippines. However, China boycotted the proceedings at the court, saying the body had no jurisdiction over the dispute, and insists it would not accept, recognize or implement any ruling on the South China Sea, despite being a signatory to UNCLOS along with the Philippines. China maintained that it would not be bound by any ruling[v]. Xinhua, the country’s official news agency, hit out at what it described as an “ill-founded” ruling that was “naturally null and void”[vi]. The Communist party mouthpiece newspaper the People’s Daily said in an editorial that the tribunal had ignored “basic truths” and “tramped” on international laws and norms. “The Chinese government and the Chinese people firmly oppose [the ruling] and will neither acknowledge it nor accept it,” added the Foreign Ministry spokesperson[vii]. However, Chinese contention that Manila had violated the UNCLOS by filing a petition on a matter of territoriality was found to be devoid of merit.
The UN has no mechanism to enforce the decision and taking the matter to the UNSC would also prove to be of little avail as China and Russia, permanent members of the UNSC, would inevitably veto it. This judgment, however, will set future precedence by prompting other claimants in the Asia-Pacific to also follow the suit and take legal action, thereby putting increased diplomatic pressure on China to scale down its military presence in the South China Sea. Vietnam, in this direction, has already welcomed the decision and Japan has called the ruling as legally binding and final. Though new Philippine President Rodrigo Duterte has called for bilateral negotiations to resolve the controversy while maintaining that he does not intend to give up much ground, the ruling will make grim reading for China.
China, in such a situation, could either continue treating the whole disputed region as its own and declare an air defense identification zone (ADIZ) over the South China Sea or could go exerting additional pressure in the region due to tremendous pressure on the government to respond. This could further lead to instigating a dangerous superpower showdown[viii]. Military exercises around the Paracel Islands conducted by China during the last two weeks are ample proof of its hard-line posturing. If China continues the normal course of events in the region relating the ruling to its national pride, it might create a global perception that China does not abide by the established rules of international order and undermine China’s own position of a responsible maritime state.
Considering China’s options and what it has been doing in the last few years, it seems the stage is set for tension filled months ahead as the ruling does not prevent the Chinese military from flexing its muscle. China, thus, might respond with fury, certainly in terms of rhetoric and possibly through more aggressive actions at sea[ix]. The current ruling can, therefore, also lead to a potential reordering of the maritime balance in Asia.
The Author is Research Assistant at CLAWS. Views expressed are personal.
[i] “Philippines wins South China Sea case against China”. URL: https://www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china
[iii] William Gallo, “UN Arbitration Court rules against Beijing in South China Sea Dispute”, Voice of America, 12 July 2016. URL: http://www.voanews.com/content/article/3413156.html
[v] “Hague Tribunal rules China’s South China Sea claims unfounded”. 12 July 2016. URL: http://www.cnbc.com/2016/07/12/tensions-in-south-china-sea-to-persist-even-after-court-ruling.html
[vi] “Philippines wins South China Sea case against China”, 12 July 2016. URL: https://www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china
[vii] Anthony Deutsch, “Tribunal overwhelmingly rejects Beijing’s South China Sea claims”, 12 July 2016. URL: http://www.reuters.com/article/us-southchinasea-ruling-stakes-idUSKCN0ZS02U
[viii] Harry Kazianis, “What China will do if it loses the South China Sea Arbitration Ruling”, 1 July 2016. URL: http://atimes.com/2016/07/what-china-will-do-if-it-loses-the-south-china-sea-arbitration-ruling/
[ix] Anthony Deutsch, “Tribunal overwhelmingly rejects Beijing’s South China Sea claims”, 12 July 2016. URL: http://www.reuters.com/article/us-southchinasea-ruling-stakes-idUSKCN0ZS02U