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South China Sea: No way to save face in hiding from The Hague

By Anthony Bergin

The South China Sea is becoming a Chinese lake, but Tuesday’s night’s ruling by a tribunal at the Permanent Court of Arbitration on The Philippines v China was a complete and stunning victory in favour of Manila.

It’s rare to get such an unqualified decision from an international tribunal: normally, these bodies try to find a way to give something to both sides, but there’s no face-saving for China from this comprehensive decision.

China took no part in the proceedings, and mounted a diplomatic drive to undermine its authority. Given the result, it was a big mistake for China not to engage the tribunal, once it had ruled it had jurisdiction to consider the case. And it wasn’t a great strategy to try to undermine the work of an international tribunal.

In ejecting the validity of China’s 9-dash line, the tribunal may help to slow China’s South China Sea ambitions in the long run.

We shouldn’t expect, however, that China’s creeping assertions of sovereignty in the sea to change anytime soon.

The Philippines didn’t request the tribunal to decide any issues of sovereignty over maritime features in the sea, or to delimit disputed maritime boundaries within the region.

These disputes will ultimately have to be resolved by negotiation by the states in dispute. But by striking down China’s nine-dash line, the ruling will affect how other claimants deal with Beijing.

The key argument in The Philippines’ case was that China didn’t have the right to explore and exploit the natural resources within The Philippines’ exclusive economic zone or continental shelf based on China’s “historic rights” in the waters enclosed by the nine-dash line.

China uses the nine-dash line to claim practically the entire South China Sea - it has been the bedrock source of all the problems in the sea.

The tribunal declared China’s claim be invalid under the UN Convention on the Law of the Sea. In rejecting the notion of historic issues and “exceptionalism”, the tribunal determined that it’s the Law of the Sea Convention that is the comprehensive statement on the limits of maritime jurisdiction.

This is a big move forward and undermines China’s negotiating position in dealing with The Philippines and others that make claims: Vietnam, Malaysia, Brunei and Taiwan.

Indonesia isn’t a claimant, but it has been experiencing acts of assertion from China in the rich fishing grounds close to the Natuna Islands. China includes parts of the Indonesian-ruled Natunas within the nine-dash line. Indonesia is now playing the most assertive role among littoral countries.

With this ruling, Indonesia could also file a case against China: it’s now clear that China doesn’t have historic rights in the exclusive economic zone claimed by Indonesia from the Natuna Islands.

It’s significant the tribunal found that China’s fishing and reclamation activities violated law of the sea provisions to protect the marine environment.

As these activities were held to be illegitimate, China should stop them. This is a significant victory for ocean environmentalists. The tribunal also found Chinese coastguard vessels’ activities against Philippine ships endanger the safety of life at sea.

It determined the legal entitlements of some disputed features in the Spratly Islands. It found them to be only rocks because they couldn’t sustain a group of people, and so aren’t entitled to an EEZ.

Many states around the world will be studying tribunal’s high threshold for what ocean features generate offshore zones. Japan, for example, could be affected by this interpretation: it has an extensive EEZ and outer continental shelf claimed from Okinotori-Shima in the Pacific Ocean — the only natural formed parts of this feature above high tide are several small rocks.

Even Australia could be affected. We’ve relied on small and uninhabited features to extend our jurisdiction through maritime boundaries with France (New Caledonia): we have used Elizabeth and Middleton reefs as base points, which are periodically submerged.

 International opinion will support using the decision to pressure Beijing to comply with the ruling. The arbitration case had the support of the US, Japan, Australia, South Korea, and key members of the EU. All these states have voiced concern about China’s massive island building program.

But it’s doubtful if international pressure will have any immediate impact on China, which has vowed to defy the ruling.

It’s unlikely at this point that the US will respond with military force to Chinese provocations, (other than in the unlikely situation of Chinese military action above a high threshold).

While the tribunal’s decision might make China more careful in its activities in the South China Sea, it would be naive to think there will be any changes quickly.

The reclaimed islands will remain. China has indicated that it will extend its resource activities in the South China Sea. It may even declare an Air Identification Zone in the sea, as it did three years ago in the East China Sea.

Other claimant countries will likely increase their presence of civilian armed vessels to protect their own resource activities; if they didn’t, it would just leave them for China to exploit.

The tribunal’s ruling limiting China’s rights and jurisdiction to explore and exploit the natural resources in the waters of the South China Sea is legally binding on China. The ruling is final and without appeal, but there’s no mechanism available to force China to comply.

Canberra should be prominent in arguing that the tribunal’s decision reflects the position of international law, so that all actions taken contrary to the decision are therefore effectively illegal.

Washington, Canberra and Manila shouldn’t be gloating. It would be best to give China some space to start to back down.

If it doesn’t, then this ruling will end up being an obscure legal footnote in the ongoing conflict over rocks and reefs in the South China Sea.

Anthony Bergin is deputy director of the Australian Strategic Policy Institute.

Originally published: The Australian. 14 July 2016

Originally published by: The Australian on 14 Jul 2016