By Shashi P.B.B. Malla & Chandra Bahadur Parbate
The Permanent Court of Arbitration (PCA) in The Hague last week firmly rejected China’s claims that it had “historical rights” in the South China Sea through its ‘nine-dash line’ (from maps dating back to the 1940s) claiming sovereignty over 90 percent of the west Pacific sea enclosed by Taiwan, China, Vietnam, Malaysia, Indonesia, Brunei and the Philippines in South-East Asia. The Tribunal, therefore, declined China’s virtual consideration of the sea as a ‘Chinese lake’ or “mare nostrum” (our sea) i.e. in international law it is a “mare liberum”, a sea that is not controlled by any one nation, and is therefore open to all. China had, of course, said in advance that the tribunal had no jurisdiction over the matter that the Philippines in 2013 had laid before it.China has already reacted furiously saying it “neither accepts nor recognizes” the ruling. The latest development could escalate tensions in the whole region.
In its hard-hitting ruling, the tribunal concluded that there was no legal basis for China’s claims in the South China Sea and were incompatible with the “Exclusive Economic Zones” (EEZs) provided for in the United Nations Convention on the Law of the Sea (UNCLOS) to which both China and the Philippines are signatories. The Permanent Court of Arbitration further determined that China had violated the Philippines’ sovereign rights in the exclusive economic zone (which extends 200 nautical miles further out from its coast and encompasses the Scarborough Shoal) by interfering with Philippine fishing and petroleum exploration, by constructing artificial islands (on reefs whose sovereignty was in doubt) and failing to prevent Chinese fishermen from fishing in the zone.
The tribunal also ruled that the disputed Spratly islands cannot generate maritime zones collectively as a unit. It also said that China had caused permanent harm to the coral reef ecosystem in the Spratleys, charges which China has consistently rejected. The ruling is significant as it is the first time that a legal challenge has been brought in the dispute, which covers some of the world’s most promising oil and gas reserves and vital fishing grounds. It also reflects the shifting balance of power in the 3.5 million sqkm sea, where China has been expanding its military presence by building artificial islands and dispatching patrol boats that forcefully keep Philippine fishing boats away.The verdict made clear that land-reclamation confers no new rights to the surrounding waters or any authority to exclude others from sailing or flying nearby.
The Hague judgment comes against the background of frequent clashes between China and its Asian neighbours which ring the waters believed to hold untapped oil and gas reserves. The tensions have also alarmed the United States which has key security treaties with many regional allies, and in shows of strength has sent warships and military aircraft to patrol close to reefs and islands claimed by China. Immediately after the ruling, the Chinese Foreign Ministry categorically said: “The award is null and void and has no binding force.” Vietnam has welcomed the ruling. A research institute in Singapore declared: “This award represents a devastating legal blow to China’s jurisdictional claims in the South China Sea.” Furthermore: “China will respond with fury, certainly in terms of rhetoric and possibly through more aggressive actions at sea.” Singapore is not a party to the dispute, but as a trading nation overlooking the strategic Strait of Malacca, it has a vital interest that the all-important shipping lanes through the South China Sea are not impeded (over US $ 5 trillion in ship-borne trade passes through the sea annually). Other maritime states in the region are definitely buoyed up by the verdict, which will also affect them directly and indirectly. Only Taiwan said it did not accept the ruling, which had seriously impaired its territorial rights. It occupies Itu Aba, the only legal island among the hundreds of reefs, shoals and atolls scattered across the seas. However, being situated only on the northern edge of the South China Sea, its claim to the major portion to the south can only be fictitious.
China has repeatedly denied the tribunal’s authority to rule on the dispute over the strategically vital region, and it refused the opportunity to defend its position at The Hague. To bolster its position in the area, it has – to the consternation of its maritime neighbours– rapidly turned reefs into artificial islands with military installations and capable of hosting military planes. Recently, China held military drills between the southern Chinese island of Hainan and the Paracel islands off the coast of Vietnam (and also claimed by it). China which boycotted the hearings at the PCA, vowed that its armed forces would defend its sovereignty and maritime interests. Shortly before the ruling was announced, a Chinese civilian aircraft successfully carried out calibration tests on two new airports in the disputed Spratly islands. China’s Defence Ministry also announced that a new guided missile destroyer had been formally commissioned at a naval base on the southern island province of Hainan, which has responsibility for the South China Sea. At the same time, China’s Foreign Ministry repeated that it respected and upheld the freedom of navigation and overflight and that it was ready to keep resolving the disputes peacefully through talks on a bilateral basis with states directly concerned. The Chinese Foreign Minister Wang Yi struck a conciliatory tone, saying that the time had now come to put things on the right track. He also praised the Philippine government’s sincerity in taking steps to demonstrate its willingness to improve ties.
A political analyst at a university in Manila termed the judgment a “clean sweep for the Philippines” with the court deciding that China had “violated prevailing international law on multiple levels”. The American Paul Reichler, the lead lawyer for the Philippines, said exultantly: “The award is a complete and total victory for the Philippines…a victory for international law and international relations.”Furthermore, “China has been branded as an outlaw in unequivocal terms. The US, Japan and other major powers should now focus on enforcing this binding verdict if China fails to comply.” Officially, the Philippine government welcomed the “milestone decision”, but at the same time called on all concerned “to exercise restraint and sobriety”. Observers expect a political backlash in China with nationalist demonstrations taking to the streets – not a rare occurrence, as these apparently take place with the tacit backing of authorities. Without doubt, the judgment was a foreign policy disaster for the Chinese Communist Party.
At the same time, China has ambitions for a more prominent place on the global diplomatic stage and for a greater role in shaping international institutions. It takes its membership of the United Nations and the UN Security Council seriously. Last year, it established the multilateral Asian Infrastructure Investment Bank (of which Nepal is a founding member). It will host the annual G20 summit in September. China also contributes more blue helmets to UN Peace Keeping Operations than any other country in the world. Consequently, it finds itself on the horns of a dilemma. It will risk enormous international goodwill by rejecting outright an approved UN tribunal drawing on a UN treaty (to which it is a party!). The Hague Tribunal’s ruling could thus possibly have a major impact on the security architecture of the entire region by convincing China to undertake major bilateral negotiations with the Philippines and Vietnam in the first instance, and also with Malaysia and Brunei. A multilateral agreement on the South China Sea would be the icing on the cake.
The writers can be reached at: [email protected]