Published daily by the Lowy Institute

The bolt from The Hague

The bolt from The Hague

Yesterday’s unanimous Award by the five-member tribunal of the Permanent Court of Arbitration was three years in the making, but for the Philippines it was worth the wait.

Of the 15 cases submitted by the Philippines in its dispute over China’s excessive maritime claims in the South China Sea, Manila received relief on almost every point of substance. The sole exception was Second Thomas Shoal, which the tribunal decided to exclude because the judges ruled, on technical grounds, that it concerned 'military activities' beyond their jurisdiction. This will be no comfort to China, given the judges’ unambiguous rejection of China’s expansive 'historic' claims within the Nine Dashed Line. Beijing must now lick its wounds, digest the implications and weigh its responses to a ruling that, on one hand, is binding and non-appealable, yet on the other hand lacks any mechanism for enforcement.

While details of the Award will be pored over for days and weeks to come, the key judgments are clear. They constitute not only a resounding victory for Manila but a damning indictment of China’s maritime misbehaviour in the time since proceedings were lodged. There are five key points to note from the Award. [fold]

First, the tribunal exceeded expectations by confronting the Nine Dashed Line head-on, concluding that 'there was no legal basis for China to claim historic rights to resources within the sea areas falling within' the U-shaped ambit claim, which dates back to maps issued by the Nationalist government in the late 1940s. Beijing’s claims to a 200 nautical mile exclusive economic zone (EEZ) from its southern coastline and Hainan island are unaffected, but the tribunal took the view that any historic rights were extinguished when China became a party to the UN Convention on the Law of the Sea (UNCLOS). Upholding the supremacy of UNCLOS is the underlying theme running through the Award.

The second key decision was that none of the Spratly Islands or Scarborough Shoal are islands capable of generating extended maritime zones, i.e. beyond a 12 nm territorial sea (and contiguous zone). It is important to note that the panel of judges made no determination on sovereignty or delimitation, as this was beyond their competence. The implications are momentous nonetheless, since it follows from the judgment that the majority of coastal EEZs of the Philippines and other Southeast Asian littoral states in the South China Sea are 'not overlapped by any possible entitlement of China'. Vietnam is likely to be the biggest beneficiary of this finding, but it will also be welcomed by Indonesia and Malaysia, which have recently borne the brunt of incursions by Chinese fishing vessels into their EEZs in the southern portions of the South China Sea. By ruling that none of the Spratly Islands is an island, the intention of the tribunal may have been to simplify the nature of the disputes and to suggest a clearer path towards an eventual settlement. This would indeed be a worthy legacy, if only for the long term.

Third, the tribunal agreed with the Philippines that China had violated its sovereign rights within its EEZ, by interfering with fishing and petroleum exploration, singling out dangerous conduct by Chinese law enforcement vessels. China also violated the Philippines’ rights by constructing artificial islands within its EEZ. As a result of the ruling, the focus of future legal efforts and perhaps US-led freedom of navigation operations, will fall squarely on Mischief Reef, which China has occupied (likely illegally) since the mid-1990s.

Fourth, the Award reserved its harshest language for the 'severe' and 'irreparable' harm inflicted on the marine environment as a result of China’s construction of artificial islands in the Spratly Islands. Significantly, the judges concluded damage to coral reefs and other fragile ecosystems was a violation of China’s obligation, under UNCLOS, to preserve and protect marine habitats. It is to be hoped that the Award will stimulate interest among groups, like Greenpeace, who until now have shown little interest in the South China Sea, which appears to be generally considered the preserve of geopolitical rather than environmental problems, despite emerging evidence that its ecosystems are collapsing.

The fifth and related tribunal finding, probably the most stinging for Beijing, is that China aggravated the dispute as a result of its island-building campaign since 2013, in the process destroying the 'evidence of the natural condition of features' identified in the dispute brought by the Philippines.

Following the PCA Award to the Philippines, the focus will now shift from the legal to the political domain. While China’s rejection of the ruling and official anger is entirely predictable, the wild card in the current situation is the response of the newly installed Duterte administration in the Philippines. Duterte’s unpredictable comments on the South China Sea dispute were the focus of attention during the presidential election campaign. Initial concerns that he could abruptly swing Manila’s diplomatic compass towards China, in pursuit of economic gains at the expense of the country’s maritime sovereign rights, appear questionable in light of the unambiguous nature of the Philippines’ legal victory. Over-confidence is now an equal risk. Moreover, simple inexperience is likely to be the fundamental challenge confronting the new government line-up as it struggles to formulate its policy approach in the glare of a global geopolitical spotlight. Unfortunately, UNCLOS’ advocates within China are likely to find themselves on the defensive in the wake of the Award.

With the legal bolt-from-the-blue now delivered from the faraway Hague, what the South China Sea needs above all is an interregnum that allows all parties to digest the ruling in its entirety and to take stock of the implications. Julie Bishop struck an optimistic note in her overnight statement, encouraging a view of the Award as 'an opportunity for the region to come together, and for claimants to re-engage in dialogue with each other based on greater clarity around maritime rights'. Time will tell.

Photo: Wikimedia/Lybil BER

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