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Friday 18 Aug 2017 | 01:54 | SYDNEY
Friday 18 Aug 2017 | 01:54 | SYDNEY

South China Sea ruling

13 Jul 2016 09:08

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.


13 Jul 2016 11:56

The ruling by the Arbitration Tribunal that is comprehensively in favour of the case filed by the Philippines in January 2013 poses four separate tests, none of them easy.

1. The test for China

The biggest test is that posed by the ruling for China. It is also the most difficult. Now, if China simply continues its present actions around features in the Philippine exclusive economic zone in the South China Sea and continues to insist on the validity of the 9-dash line, it will be unambiguously undertaking unlawful activities. This will deepen the already profound distrust and fear of China in the region and contribute to China’s self-isolation in maritime East Asia. As President Xi notes, big powers are different to smaller ones. Ignoring international law should not be one of these differences.


14 Jul 2016 12:00

China and Vietnam have reacted very differently to the Permanent Court of Arbitration ruling on the South China Sea. While China's Ministry of Foreign Affairs has declared the PCA award should be 'null and void', in Hanoi it was welcomed. The PCA ruling will give the Vietnamese government extra leverage in its dealings with the Chinese however, given China’s economic and political weight in Vietnam, Hanoi will proceed carefully.


15 Jul 2016 13:00

Tuesday's South China Sea adjudication demonstrates that the UNCLOS framework is totally unsuited to sorting out the complex conflicting claims in the South China Sea in a way that the relevant parties will accept. By effectively announcing the Philippines as winner and China as loser, the tribunal's finding is now the basis for empty point-scoring. There is zero chance that China will accept an outcome arrived at in this way. 

UNCLOS acknowledges the futility of this sort of process: the over-arching UNCLOS principle is that the parties involved should sort things out by mutual agreement. UNCLOS then blesses whatever they have agreed on, even if it doesn't fit precisely into UNCLOS norms. 

With the South China Sea, a complex multi-party solution will be needed rather than a few general rules-of-thumb and one-sided legal proceedings. The South China Sea disputes can't be resolved by lawyers in a distant court or some surveyor's equidistant lines on charts.


15 Jul 2016 14:57

The South China Sea dispute verdict has been delivered in favour of the Philippines, and the infamous 'nine dash line' now has no basis in international law.

Without taking sides on the dispute, India has chosen to take a stand on the principle and application of international law, issuing a statement that said: 'As a State Party to the United Nations Convention on the Law Of the Sea (UNCLOS), India urges all parties to show utmost respect for the UNCLOS, which establishes the international legal order of the seas and oceans.' The statement indicates that New Delhi recognises the ruling from the Permanent Court of Arbitration (PCA) and will uphold it. 


18 Jul 2016 14:48

By Nicholas Welsh, an intern in the Lowy Institute's International Security Program.

As the dust begins to settle after the Permanent Court of Arbitration's landmark ruling on Tuesday, many countries find themselves in the unenviable position of deciding whether or not to take sides. From the outset however, it is important to understand that 'choosing sides' in this particular case is not simply about siding with China's maritime territory claims or those of the Philippines (often portrayed as the 'US side'). 

Beyond the strategic and economic impacts of classifying features as rocks instead of islands, this case will set a precedent for many international dispute resolution cases for years to come. One side argues that the ruling of the tribunal is legally binding; the other that the entire procedure is illegitimate and void. With no enforcement mechanism (apart from international pressure) debate is now raging; not between China and the Philippines, but between those in support of multilateral international law structures and those who consider them invalid.


18 Jul 2016 17:02

China’s national pride as well as its ambitions to exert control over the South China Sea were dealt a heavy blow by the 12 July decision of the Permanent Court of Arbitration in The Hague in the case filed by the Philippines. As expected, Beijing firmly rejected the ruling, declaring the award null and void with no legally binding force. In a string of official statements, including a new White Paper, China reiterated its positions and warned that it would decisively respond to any provocations against Chinese interests in the South China Sea. In a sharp rebuke to Foreign Minister Julie Bishop’s call for China to abide by the verdict and her assertion that Australia would continue freedom of navigation exercises, China’s foreign ministry spokesman cautioned Australia against treating international law as a 'game' and threatened that unwelcome actions by Canberra could result in a setback in bilateral relations


19 Jul 2016 10:28

Editor's note: We mistakenly published an earlier version of this article. This is the corrected text.

Tuesday’s ruling by the International Tribunal on the Law of the Sea has bought a little clarity to the problems in the South China Sea, but it has not made solving the underlying problems significantly simpler.

In a bad day for China, the Tribunal ruled that Beijing’s ‘nine-dash line’ (its claim to between 60% and 90% of the waters of the South China Sea) had no legal basis because China’s claims of ‘historic rights’ to the waters of the Sea had been rendered invalid when it signed the United Nations Convention on the Law of the Sea. The judgement went on to say that none of the Spratlys, a chain of reefs and rocks at the southern end of the South China Sea where China has recently built seven installations, were 'islands' and therefore did not generate any territorial or economic rights regardless of who occupied them. China also came in for further criticism over both its policy of blocking Philippine fishermen from plying their trade, and for its island building, which the Tribunal said had caused ‘severe’ environmental damage.

Philippine fishing crews prepare for an expedition to waters off the contested Spratlys, July 2016 (Photo: Getty images/Jes Aznar)


20 Jul 2016 08:30

Australia’s febrile domestic politics produced another petty point-scoring moment after the shadow defence minister, Senator Stephen Conroy, sought political mileage from last Tuesday’s historic South China Sea arbitration

Senator Conroy criticised the government for not sanctioning Freedom of Navigation of Operations (FONOPs); in response, Foreign Minister Julie Bishop slapped Conroy down for unnecessarily raising tensions on a delicate matter. Bishop did, assert however, that Australia would continue to exercise its rights of freedom of navigation in the South China Sea ‘as it has always done.’

So what has The Hague ruling changed in terms of freedom of navigation? 


20 Jul 2016 16:38

The Hague tribunal decision last week in the South China Sea case will have far reaching implications, finding that any ‘historic rights’ China claimed within the Exclusive Economic Zones (EEZ) of other states were extinguished by UNCLOS itself, and China's subsequent ratification of the treaty in 1996. 

Despite some claims to the contrary, China’s stated refusal to accept the decision does not signal that the UNCLOS framework is unsuitable to solving complex maritime disputes. On the contrary, as Robert Beckman, head of the Ocean Law & Policy Programme at the NUS Centre for International Law argues, this authoritative decision will likely influence government legal advisers and negotiators for years to come.


21 Jul 2016 11:30

The Permanent Court of Arbitration's decision places more pressure on the US than China, as Washington must now act to support this emphatic judgement. Failure to do so will further weaken America's credibility, and undermine the rules-based order it seeks to preserve.

In order to determine how the US may effectively respond, China's strategy must be understood.

In recent years a number of high profile strategists have described China's South China Sea (SCS) encroachment as 'salami tactics'. Here on The Interpreter, Derek Lundy eloquently explained what is meant by this (though none will eclipse this gem from Yes Prime Minister). Indeed, the depiction of China's approach in the SCS as 'salami tactics' is now a widely accepted norm.

Nevertheless, this is contestable. In my view China is not employing salami tactics at all, but rather a wholly different strategy. This challenges a consensus, and requires a substantive explanation.


21 Jul 2016 15:35

Dr Michael Leach makes a number of inaccurate claims in his Interpreter post: 'The PCA ruling, Australia and Timor-Leste'.

Dr Leach asserts Australia is engaged in a ‘two-step’ in its approach to international law with China and Timor-Leste. He also appears to accept a premise of Australia’s ‘persistent refusal to negotiate maritime boundaries with Timor-Leste’. The facts, however, are quite different.

Australia takes a consistent approach, whether in relation to the Timor Sea or the South China Sea. We believe parties to disputes should resolve them peacefully, in accordance with international law. This is the approach Australia and Timor-Leste have taken in the Timor Sea. 

In previous negotiations, Australia and Timor-Leste were unable to reach agreement on permanent boundaries. As an alternative, both countries agreed to put in place arrangements to enable joint development of the resources. The UN Convention on the Law of the Sea actively encourages countries this type of approach. It’s a practical way of working together to overcome disputes. The arrangements between Timor-Leste and Australia have been cited as best practice.