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| China's moving lines (Click Image to Enlarge) |
Anthony Bergin
The People’s Republic of China’s Ministry of Foreign Affairs has already stated that the international Tribunal’s award in The Philippines v. China case is null and void and has no binding force. That’s no great surprise.
There’s no other way to describe this mammoth 501-page ruling than as a complete and total sweeping legal victory for the Philippines on all counts—and a harsh verdict on the lawfulness of China’s artificial island construction and other actions in the South China Sea.
It found that China’s construction of artificial islands at seven features in the Spratly Islands violated UNCLOS obligations to protect the marine environment.
The Tribunal ruled that China’s land reclamation and construction of artificial islands in the Spratly Islands after the arbitration was commenced, violated the obligations UNCLOS places on states to refrain from conduct that aggravates and extends a dispute while dispute resolution proceedings are pending.
The Tribunal held that Chinese law enforcement vessels violated maritime safety obligations by creating a serious risk of collision on two occasions in April and May 2012 during the Scarborough Shoal standoff.
No wonder China is furious, even though the Tribunal pointed out that we shouldn’t assume that these disputes are the product of China’s bad faith, but rather the result of basic disagreements about respective rights and obligations and the applicability of UNCLOS. (see para 1,198 of the award).
The Tribunal’s award is final and legally binding on the parties to the dispute under the provisions of UNCLOS. China is required to comply with the award.
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| Summary of the Philippine Claims (Click Image to Enlarge) |
The Tribunal didn’t in any way hold back from deciding on all the legal issues before it. There will be lots to discuss, debate and digest for quite a while, but the key point is that the Tribunal ruled in favor of almost all of the Philippines’ claims in the arbitration.
There’s almost no room in the five judges’ rulings here for China to try and reach an agreement with the Philippines.
The Tribunal even went as far as cutting off the option of China drawing ‘straight baselines’ around the Spratlys to allow the whole area to generate ocean zones: it simply stated that China wasn’t an ‘archipelagic’ state.
The most important ruling was that the nine-dash line has been ruled inconsistent with China’s obligations under the UN Convention on the Law of the Sea.
China has never made clear whether the line represents a claim to the islands within the line and their adjacent waters, a boundary of national sovereignty over all the enclosed waters, or an historic claim of rights to the maritime space within the line.
The Tribunal ruled that UNCLOS comprehensively governs the parties’ respective rights to maritime areas in the South China Sea and so to the extent China’s nine-dash line is a claim of ‘historic rights’ to the waters of the South China Sea, it’s invalid.
It also found that were no land features in the Spratlys that are islands. It even ruled that Itu Aba (Taiping Island), the largest land feature in the Spratly Islands, is a rock and not an island.
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| Map charting the Arbitration Tribunals Findings (Click Image to Enlarge) |
In fact, it found that many of the ocean features aren’t even rocks that would allow China to generate a territorial sea. The Tribunal held that determining the status of a land feature as a rock or as an island required showing that the land feature lacks an ability to sustain human habitation and an economic life of its own.
The Tribunal found that current presence of personnel on the features is dependent on outside support and doesn’t reflect the capacity of the features in their natural condition.
China will still be able to maintain its garrison on the Scarborough Shoal: it’s a rock that generates a territorial sea. But China has no basis for claiming sovereignty over the Second Thomas Shoal, due to its status as a reef.
The Tribunal held that Mischief Reef, within the exclusive economic zone and on the continental shelf of the Philippines, isn’t a rock.
China has a very extensive artificial island on top of Mischief Reef. But the award means that China can’t justify this illegal artificial island. I wouldn’t, however, hold my breath waiting to see China’s reaction if Manila asks for its withdrawal.
The Tribunal has no power to enforce its binding decision. So the key question now will turn on how the ruling will be implemented, and how it’ll impact on future negotiations over sovereignty in the South China Sea. Taiwan, Singapore and Malaysia have issued statements but as yet there’s been no common ASEAN statement.
There’s still a lot of water to pass under this bridge but in the short term the Tribunal’s decision will raise diplomatic tensions with China. By being defeated legally so extensively, China may not even consider commencing negotiations unless the judgement is put aside.
Anthony Bergin is deputy director at ASPI and previously lectured on the law of the sea at ADFA and the ANU.
This article first appeared on the ASPI "The Strategist" Blog and is reposted here under a Creative Commons license.
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