Delivering a major moral victory for the Philippines, an international tribunal ruled Tuesday that China’s claims to “historic rights” in the South China Sea are invalid, and that numerous formations occupied by China in the Spratly Islands are not “islands” entitled to exclusive maritime zones.
The Permanent Court of Arbitration in The Hague, Netherlands, also said that China’s island-building activities violated the U.N. Convention on the Law of the Seas, as did its moves to deny Filipinos access to traditional fishing grounds. The five-judge panel also found that environmental damage caused by Chinese activities violated 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 the U.N. Convention on the Law of the Sea, they affect what kind of territorial or economic rights go with the features. For example, if something is considered an island, 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 mere rock in international waters, then anyone could fish near it.
Both China and the Philippines are signatories to UNCLOS.
Although the ruling is a victory for Manila, the tribunal has no powers of enforcement, and it was unclear what would happen next.
Philippine Foreign Secretary Perfecto Yasay hailed the ruling a “milestone decision” 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.”
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 case was decided by a five-judge panel overseen by Thomas Mensah of Ghana. Other members were Jean-Pierre Cot of France, Stanislaw Pawlak of Poland, Alfred Soons of the Netherlands and Rüdiger Wolfrum of Germany.
The Philippines filed its case in 2013 and asked the tribunal to rule on 15 different questions. China refused to participate in the tribunal’s proceedings, sending no one to argue on its behalf. That’s because Beijing has contended that the dispute was, at its heart, about sovereignty – a question that is beyond the purview of the tribunal.
At the heart 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 has never explicitly defined what privileges it believes it has within the nine-dash line, it has asserted “historic rights” across this huge swathe of sea. In the last few years, it has engaged in massive engineering projects inside this nine-dash line, turning formerly small reefs it 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.
China has called for questions of sovereignty to be decided in direct talks with the Philippines (and other Southeast Asian nations that also have claims in the region).
Unless the question of sovereignty over those reefs and shoals is first determined, China contended, 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, 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,” the court said.
The court added that to the extent that China had any historic rights to resources in the waters of the South China Sea, those rights were essentially extinguished when Beijing signed on to the U.N. Convention of the Law of the Sea.
In another blow to Beijing, the tribunal concluded that none of the Spratly Islands are – in their natural state – capable of supporting continuous human habitation. Therefore, the tribunal said, none of the features currently occupied by China was entitled extended maritime zones such as a 200-mile economic exclusion zone. Furthermore, the tribunal also held that the Spratly Islands could not generate maritime zones collectively as a unit.
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 in numerous ways. 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 that 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 and the habitat of depleted, threatened, or endangered species.”
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 reefs, it had to consult historical materials to determine their natural conditions.
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