ΠΑΝΤΟΤΕ ΥΠΟΣΤΗΡΙΖΑ ΟΤΙ ΟΙ ΚΙΝΕΖΙΚΕΣ ΕΝΕΡΓΕΙΕΣ ΣΤΗ ΝΟΤΙΑ ΑΣΙΑΤΙΚΗ ΘΑΛΑΣΣΑ ΗΣΑΝ ΠΑΡΑΝΟΜΕΣ ΚΑΙ ΚΑΘΑΡΑ ΕΠΕΚΤΑΤΙΚΕΣ ΕΠΙΛΟΓΕΣ ΤΟΥ ΠΕΚΙΝΟΥ. ΔΥΝΑΤΟ ΧΑΣΤΟΥΚΙ ΑΠΟ ΤΟ ΔΙΕΘΝΕΣ ΔΙΚΑΣΤΗΡΙΟ.
The most significant part of the 12 July award by the International Tribunal on the Law of the Sea under the Permanent Court of Arbitration in The Hague is the judgment that “there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’ ”. The decision delivers an unequivocal rebuke to the most controversial component of China’s claims.
The Nine-Dash Line, which appears on official Chinese maps, includes most of the South China Sea and slices into the Exclusive Economic Zone (EEZ) claimed by the Philippines – as well as into those claimed by Brunei, Indonesia, Malaysia and Vietnam.
The Tribunal said Beijing had forfeited those rights when it signed the United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal also ruled that none of the features in the Spratly chain are legally “islands”, and so do not generate EEZ entitlements. The two decisions combined will significantly limit the size of the maritime zone and scope of maritime rights that China can legally claim.
Following from this, the Tribunal ruled that China has violated the Philippines’ sovereign rights in its EEZ by interfering with Philippine fishing and petroleum exploration, constructing artificial islands and failing to prevent Chinese fishermen from fishing in the area.
Arguably even more negative for China’s international reputation is the Tribunal’s ruling that Chinese activities have severely harmed marine ecology and the environment by destroying coral reefs and failing to prevent the harvesting of endangered species.
China repeated its refusal to accept or comply with the ruling. It also restated its claims in the South China Sea, including land features, internal waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf and historic rights. Early signals indicate that China does not plan to retreat from claiming historic rights within the Nine-Dash Line, which likely include entitlement to fisheries and hydrocarbon resources. Its claim to internal waters suggests China may consider drawing a baseline around the entirety of the Spratly island chain, claiming internal waters within the baseline and maritime entitlement outward from it, despite the Tribunal’s decision that “the Spratly Islands cannot generate maritime zones collectively as a unit.”
COMMENTARY | South China Sea: The Positions and the Facts, 8 July 2016
While the ruling is likely to provoke heated rhetoric in the short term, it could ultimately help reverse recent trends toward confrontation. Despite Beijing’s public rejection, the ruling is binding on China and the Philippines. The process could set an example for other claimants to follow and thus provide incentive for China to negotiate. By providing greater legal clarity and generating international attention, it could reduce the asymmetry between China and other claimants in negotiations.
To mitigate the damage to its reputation and demonstrate respect for international law, China could take some incremental and face-saving steps towards compliance. It could reopen Scarborough Shoal to Filipino fishermen; stop interference with fishing and exploration activities by other claimants in their lawful EEZs; and prevent its fishermen from poaching endangered species.
Finally, it could make substantive progress on formulating a code of conduct with the Association of Southeast Asian Nations. This would commit all parties to binding norms of behaviour, reduce the risk for clashes and restore South East Asia’s faith in China’s pledge for peace and cooperation.
Summary of the Tribunal’s Ruling
|The Philippines’ Final Submission||The Tribunal’s Ruling|
|1. China’s maritime entitlements in the South China Sea may not extend beyond those permitted by the United Nations Convention on the Law of the Sea (UNCLOS).||China’s claims cannot extend beyond those defined by UNCLOS.|
|2. China’s claims within its “Nine-Dash Line” that exceed its entitlements under UNCLOS are unlawful.||China’s claims to historic rights within the “Nine-Dash Line” are incompatible with UNCLOS.|
|3. Scarborough Shoal generates no Exclusive Economic Zone (EEZ) or continental shelf.||Scarborough Shoal’s high-tide features are rocks, and thus generate neither an EEZ nor a continental shelf.|
|4. Mischief Reef, Second Thomas Shoal, and Subi Reef are low-tide elevations that generate no maritime entitlements.||These features are low-tide elevations, thus have no maritime entitlements|
|5. Mischief Reef and Second Thomas Shoal are part of the EEZ and continental shelf of the Philippines.||These features are part of the EEZ and continental shelf of the Philippines.|
|6. Gaven Reef and McKennan Reefs are low-tide elevations that generate no maritime entitlements, but may be used to determine baselines.||Gaven Reef (North) and McKennan Reef are rocks. Gaven Reef (South) is a low-tide elevation.|
|7. Johnson Reef, Cuarteron Reef, and Fiery Cross Reef generate no entitlements to an EEZ or continental shelf.||Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are rocks, generating no EEZ or continental shelf entitlements|
|8. China has unlawfully interfered with the Philippines’ exercise of sovereign rights over resources in its EEZ and continental shelf.||China violated the Philippines’ sovereign rights in its EEZ by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to stop Chinese fishermen fishing in the zone.|
|9. China has unlawfully failed to prevent its nationals and vessels from exploiting living resources in the Philippines’ EEZ.||China violated the Philippines’ sovereign rights in its EEZ by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to stop Chinese fishermen fishing in the zone.|
|10. China has unlawfully interfered with Philippine fishermen’s traditional fishing activities at Scarborough Shoal.||Fishermen from the Philippines and China have traditional fishing rights at Scarborough Shoal, and China interfered with these rights by restricting access.|
|11. China has violated its obligations under UNCLOS to protect the marine environment at Scarborough Shoal, Second Thomas Shoal, Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef.||China caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems and endangered species.|
|12. China’s occupation of and construction activities on Mischief Reef violate UNCLOS provisions on artificial islands and environmental protection, and constitute unlawful acts of attempted appropriation.||China’s land reclamation and construction of artificial islands has caused severe harm to coral reefs. China has violated its obligation to protect the marine environment. Chinese fishermen have been harvesting endangered species. Chinese authorities were aware of the activities and failed to stop them.|
|13. China has breached UNCLOS obligations around Scarborough Shoal though dangerous operation of law enforcement vessels and endangerment of Philippine vessels.||China, through the conduct of Chinese law enforcement vessels around Scarborough Shoal, endangered Philippine vessels and personnel in violation of UNCLOS.|
|14. China has unlawfully aggravated and extended the disputes. At Second Thomas Shoal, it has (a) interfered with the Philippines’ rights of navigation, (b) prevented the rotation and resupply of Philippine personnel, and (c) endangered the health and well-being of those personnel. In addition, China has (d) conducted dredging, artificial island-building and construction activities at Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef.||China has violated its obligations to refrain from aggravating or extending disputes during the settlement process.The Tribunal lacks jurisdiction on submissions (a) to (c).|
|15. China shall respect the rights and freedoms of the Philippines and comply with its duties under UNCLOS.||Both parties are obliged to comply with UNCLOS.|