A U.S. Navy crewman aboard a P-8A Poseidon surveillance aircraft views a computer screen purportedly showing Chinese construction on the reclaimed land of Fiery Cross Reef in the disputed Spratly Islands in the South China Sea in this still image from video provided by the United States Navy May 21, 2015. Photo by U.S. Navy/Handout via Reuters/File Photo
And what will happen after the July 12 ruling?
On July 12, a panel of five judges at the Permanent Court of Arbitration (PCA) in The Hague will announce their ruling in a case brought by the Philippines against China over its actions in the South China Sea (Vietnam’s East Sea).
1. Why is it important?
– The Philippines’ case against China marks the first time any legal challenge has been bought in the South China Sea territorial dispute. Centred on the Spratlys archipelago which straddle vital international shipping lanes, tensions in the South China Sea have simmered for decades, intensifying in recent years. China, Taiwan, Vietnam, Malaysia and Brunei claim the Spratlys and/or surrounding waters. China, Taiwan and Vietnam claim all of the Paracel Islands in the north of the South China Sea.
– The dispute has intensified political and military rivalry across the region between the rising power of China and the long-dominant player, the United States. China has been projecting its growing naval reach while the U.S. is deepening ties with both traditional security allies, such as Japan and the Philippines, and newer friends, including Vietnam, Indonesia and Myanmar.
– Chinese analysts say the South China Sea will only grow in importance to Beijing, particularly as its submarine base on Hainan Island will be crucial to China’s future nuclear deterrent.
A satellite image released by the Asian Maritime Transparency Initiative at Washington’s Center for Strategic and International Studies shows construction of possible radar tower facilities in the Spratly Islands in the disputed South China Sea in this image released on February 23, 2016. Photo by Mandatory credit CSIS Asia Maritime Transparency Initiative.
2. What does the case involve?
– The Philippines formally lodged its arbitration case under the UN’s 1982 Convention of the Law of the Sea, known as UNCLOS, in January 2013.
– China repeatedly warned the Philippines against pushing ahead with the case, and Beijing has refused to participate in any of its hearings, forgoing its right to appoint a judge. China says the court has no jurisdiction, and that its historic rights and sovereignty over the South China Sea predates UNCLOS.
– UNCLOS does not deal with sovereignty issues, but sets out what countries can claim from various geographic features at sea, as well maritime behaviour. That regime allows for 12 nautical miles of territorial waters from islands and rocks and 200 nautical miles of Exclusive Economic Zone from islands that can sustain ordinary human habitation. An EEZ is not sovereign territory but gives a country the right to the fish and seabed resources, including oil and gas, within that zone.
– China and the Philippines are among the 167 parties that have signed and ratified UNCLOS. The United States has not, as the law has been blocked in the U.S. Senate in the past. But its government recognises it as customary international law, including during naval patrols of the South China Sea.
Philippine Foreign Secretary Albert Del Rosario points to an ancient map on display at a Catholic university in Manila September 11, 2014. The Philippines put on display dozens of ancient maps which officials said showed that China’s territorial claims over the South China Sea did not include a disputed shoal at the center of an acrimonious standoff. The Philippines is in dispute with China over parts of the South China Sea, including the Scarborough Shoal, an area believed to be rich in oil and natural gas as well as fisheries resources. Photo by Reuters/Romeo Ranoco.
4. What is the key to Manila’s case?
– Manila’s case is built around 15 points that seek to clarify its rights to exploit its EEZ. It challenges Chinese activities, including fishing, dredging and law enforcement patrols, as well as Beijing’s reclamation and construction on seven reefs in the Spratlys. It also challenges China’s effective control of the Scarborough Shoal, seeking a ruling that shows it sits entirely within the Philippines’ EEZ.
– Any ruling on the legality of the nine-dash line, Beijing’s controversial claim to much of the South China Sea, will be closely watched. Created in the late 1940s and used on official Chinese maps, the line bisects the EEZs of several other countries and reaches deep into the maritime heart of Southeast Asia.
– Manila’s lawyers have also argued that none of islands, shoals and reefs across the Spratlys are significant enough to lay claim to an EEZ.
Soldiers of China’s People’s Liberation Army (PLA) Navy patrol near a sign in the Spratly Islands, known in China as the Nansha Islands, February 9, 2016. The sign reads “Nansha is our national land, sacred and inviolable.” Photo by Reuters/Stringer.
5. What happens next?
– While the findings are legally binding, UNCLOS has no enforcement body and legal experts say it remains unclear what can be done when China ignores the ruling. (Cases involving a ruling over actual sovereignty require mutual consent by states and are heard by the International Court of Justice in The Hague. ICJ rulings are enforceable by the United Nations Security Council.)
– Chinese officials have not ruled out future military action to enforce their claims, including construction on the Scarborough Shoal or the imposition of an air defence zone over the area. They have warned against further expansion of the U.S. military presence in the area.
– U.S. responses could include an increase in the frequency of so-called freedom of navigation operations and overflights in the region and increased defence aid to Southeast Asian countries, according to U.S. officials speaking on the condition of anonymity.
– Other claimants, particularly Vietnam, are being closely watched to see whether they will launch their own action against China. Hanoi has sought legal opinions on a possible case, and its officials have yet to rule out such action.