Hague’s International Ruling on Action in the South China Sea
By John Napolitano
“China fumed in July when a world arbitration court said the Communist leadership lacked a legal basis to claim 95% of a resource-rich, strategically valuable sea off its south coast.”[i]
Background
This past summer, the Permanent Court of Arbitration, the Hague’s international tribunal delivered an opinion on China’s longstanding claim to control of the South China Sea.[ii] The tribunal found that China’s claim to sovereignty over the sea had no legal basis.[iii] Commentators have stated that the ruling went much further than was expected.[iv] The tribunal declared that China has been violating international law in the South China Sea.[v]
Law
The Philippines brought this case against China’s in 2013 after China took control of Scarborough Shoal.[vi] The Philippines asked the international tribunal to declare that China’s “historic rights” claims to the region were only valid if they accorded with the UN Convention on the Law of the Sea (UNCLOS).[vii] The case has been “seen as an important crossroads in China’s rise as a global power and in its rivalry with the United States, and it could force Beijing to reconsider its assertive tactics in the region or risk being labeled an international outlaw.”[viii]
China’s argument that it has historic rights over most of the South China Sea was rejected by the tribunal, which declared large areas of the sea to be neutral international waters or the exclusive economic zones of other East Asian countries.[ix] This ruling is also expected to give the governments of other countries impacted by the decision significant leverage in their own maritime disputes with China.[x]
Legal Analysis
In this landmark decision, the tribunal concluded that China had violated international law, stating that China caused “irreparable harm” to the marine environment.[xi] Ruling also, that China had endangered Philippine ships and obstructed Philippine fishing and oil exploration. Though this decision is legally binding, there is no enforcement mechanism, and China has alleged it will not accept it.[xii]
For Beijing this ruling can be seen as an extremely negative outcome, and that it is an international publicized criticism of China’s actions. However, the Chinese president, Xi Jinping, said that the tribunal’s ruling will not impact China’s “territorial sovereignty and marine rights.”[xiii] The Chinese media has been very opened to its disdain for the tribunal’s verdict. For example, Xinhua, the country’s official news agency, described the decision as “ill-founded.”[xiv] It also stated that the decision was “naturally null and void.”[xv] The People’s Daily, a Chinese newspaper, said in an editorial that the tribunal had ignored “basic truths” and “trampled” on international laws and norms.[xvi] It added that “[t]he Chinese government and the Chinese people firmly oppose [the ruling] and will neither acknowledge it nor accept it.”[xvii]
Others feel differently though, Perfecto Yasay Jr, the Philippine foreign affairs secretary, said Philippines are thrilled by the ruling, stating that it called for “restraint and sobriety.”[xviii] The United States Department has called for China to comply with its obligations.[xix] The tribunal declared that “although Chinese navigators and fishermen, as well as those of other states, had historically made use of the islands in the South China Sea, there was no evidence that China had historically exercised exclusive control over the waters or their resources.”[xx]
Conclusion
State Department spokesman John Kirby has said that the United States, and the global community, expect China to commit to tribunal’s ruling.[xxi] He said that "[t]he world is watching to see if China is really the global power it professes itself to be, and the responsible power that it professes itself to be.”[xxii] As previously mentioned, the ruling is viewed as a significant win for the Philippines. However, the negative to be weary of is that ruling could heighten friction in a region that has been historically riddled with existing tensions.
The United States has urged all parties "to avoid provocative statements and actions."[xxiii] And though Washington takes no position on the territorial disputes in the South China Sea, it has called for an immediate end to land reclamation. President Obama has urged a peaceful resolution to the dispute, he said that he firmly believes that large nations shouldn't bully small ones.[xxiv] But as China has made clear, the United States isn't among the 180 countries that have ratified the UNCLOS, and because of this it potentially undermines the United States clout on this issue.[xxv] All are hopeful that the decision be seen as new opportunity to renew efforts to address maritime disputes peacefully. This is an issue that needs to be monitored.[xxvi]
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[i] Ralph Jennings, How Beijing Can Gracefully Win the South China Sea Dispute, Forbes (Sept. 26, 2016), http://www.forbes.com/sites/ralphjennings/2016/09/27/how-beijing-can-win-the-south-china-sea-dispute-despite-world-court-ruling/#52aebc7d6dd1.
[ii] Why a Tribunal Has Ruled Against China on the South China Sea, The Economist (July 13, 2016), http://www.economist.com/blogs/economist-explains/2016/07/economist-explains-12.
[iii] Id.
[iv] Id.
[v] Id.
[vi] Id.
[vii] Id.
[viii] Jane Perlez, Tribunal Rejects Beijing’s Claims in South China Sea, NYTimes.com (July 12, 2016), http://www.nytimes.com/2016/07/13/world/asia/south-china-sea-hague-ruling-philippines.html?_r=0.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Id.
[xiii] Tom Phillips, Oliver Holmes, & Owen Bowcott, Beijing Rejects Tribunal’s Ruling in South China Sea Case, theguardian, (July 12, 2016), https://www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china.
[xiv] Id.
[xv] Id.
[xvi] Id.
[xvii] Id.
[xviii] Id.
[xix] Id.
[xx] Id.
[xxi] Katie Hunt, South China Sea: Court Rules in Favor of Philippines over China, CNN.com (July 12, 2016), http://www.cnn.com/2016/07/12/asia/china-philippines-south-china-sea/.
[xxii] Id.
[xxiii] Id.
[xxiv] Id.
[xxv] Id.
[xxvi] Id.