By Jill Goldenziel
If an arbitral tribunal finds China in breach of UNCLOS, the international pressure on Beijing would be enormous.
Tensions escalated between Washington and Beijing last week as a U.S. warship approached an artificially created Chinese island in the South China Sea. But the real threat to China came in the courtroom, when an arbitral tribunal in The Hague held that it has jurisdiction over key issues in the Philippines’ dispute against China over its South China Sea claims. Whether the Philippines wins or loses in the next phase of the case, the ruling will have serious consequences for China’s role as a world power.
Although China says its claims to the South China Sea are indisputable, the Tribunal’s ruling only escalates a long-running conflict. Besides being one of the world’s busiest maritime routes, the South China Sea is rich in fish stocks as well as oil and gas deposits. China, the Philippines, Vietnam, Brunei, Taiwan, and Malaysia all have overlapping claims in the sea. To cement its position, China has recently built seven artificial islets over uninhabited reefs and shoals. China believes that it controls the 80-90 percent of the 1.35 million square-mile sea that falls within the “nine-dashed line,” a feature drawn on Chinese maps by its Nationalist government in 1947.
Unable to challenge China militarily, the Philippines turned to the law. In 2013, the Philippines filed a case in the Permanent Court of Arbitration in The Hague, asserting its rights to exploit the 200-nautical mile Exclusive Economic Zone that extends from the archipelago into the South China Sea. The Philippines brought their claim under the United Nations Convention on the Law of the Sea (UNCLOS), to which both states are parties. China scoffed, claimed that the Tribunal had no jurisdiction, and boycotted the proceedings.
Unable to ignore the dispute, however, China released a position paper that looked suspiciously like a legal brief. Rooting its own claims in international law, China argued that the Philippines’ maritime delineation/entitlement claims were merely territorial sovereignty claims in disguise. Since the tribunal cannot consider sovereignty claims, it therefore had no jurisdiction. The tribunal considered China’s position paper as the state’s position when holding that it, in fact, had jurisdiction.
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