26 October 2016
Beijing’s land reclamation and construction activities in the South China Sea have caused "severe, irreparable harm” to the ecosystem, an international tribunal has said, among other things. Credit: Reuters
Beijing’s land reclamation and construction activities in the South China Sea have caused "severe, irreparable harm” to the ecosystem, an international tribunal has said, among other things. Credit: Reuters

Tribunal ruling brings legal clarity to South China Sea

An international court in The Hague has ruled that China’s trump card in its claims in the South China Sea – its long historical relationship – as depicted in a nine-dash-line shown on official maps enclosing up to 90 percent of the waters, has no legal validity.

The Chinese government has tried to have the best of both worlds by citing the United Nations Convention of the Law of the Sea when it was in its interest and citing history when its claims ran counter to what is laid down in that law.

China has, since 1996, asserted a 200-nautical-mile exclusive economic zone from its coast, as granted by the law, but denies neighboring countries enjoyment of their zones by claiming historical rights in some of those areas.

In a sweeping decision following a case brought by the Philippines, The Permanent Court of Arbitration in The Hague has ruled that “any historic rights China may have had in the waters of the South China Sea beyond its territorial sea were extinguished by the adoption of the convention and in customary law of the concept of the exclusive economic zone”.

That is to say, when China ratified the convention in 1996, it automatically lost the right to argue that it had historic rights.

Such Chinese claims vis-à-vis the Philippines, the tribunal declared, “are contrary to the convention and without lawful effect”.

In another blow to China, the tribunal also ruled that none of the features in the Spratly Islands, claimed in whole by China, Vietnam and Taiwan and in part by the Philippines, Malaysia and Brunei, were technically speaking islands but were either low-tide elevations with no territorial claims or rocks that cannot sustain human habitation of their own and thus have only a territorial sea but not an economic zone.

China was clearly prepared for an adverse ruling and reacted massively, with statements from President Xi Jinping, the foreign ministry, the foreign minister, a ministry spokesman and also a white paper titled “China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea”.

In fact, despite China’s hardline stance of rejecting the tribunal’s ruling and, indeed the legitimacy of the tribunal itself, the message that it sent out was that it was open to negotiations.

Thus, Foreign Minister Wang Yi’s statement, while calling the tribunal proceedings “a farce”, went on to say, “It is time that things come back to normal”.

Moreover, the new Philippine administration of President Rodrigo Duterte has avoided a triumphant tone since the tribunal’s ruling, instead emphasizing its desire for good relations with China with the nation’s foreign secretary calling for “restraint and sobriety”.

China, on its part, has been careful to note that the case against it had been “unilaterally initiated by the former government of the Philippines”, not putting any blame on the current administration.

While the atmosphere is much more positive than a month ago, before Benigno Aquino III stepped down as president, China won’t be willing to adopt the tribunal’s findings as the basis of talks. That is to say, it will insist that Manila set aside the ruling if talks are to be held.

The tribunal’s ruling has brought legal clarity to the various South China Sea claimants. In their future dealings with China, countries such as Vietnam and Malaysia will know that China’s claims in fact have little or no legal validity, and they will have a stronger moral position when objecting to Chinese actions in their exclusive economic zones. If need be, these countries can also consider bringing their own cases against China.

The ruling also has implications for Japan. Both China and Japan now know that Senkaku, or Diaoyu, islands are mere rocks and sovereignty won’t mean ownership of the resource-rich seabed around a 200-mile radius.

The United States, too, is now on firmer legal ground when conducting freedom of navigation operations since the tribunal has found China’s island-building to be in breach of the convention, not least because its land reclamation and construction has caused “severe, irreparable harm to the coral reef ecosystem”.

Despite China’s claim that dozens of countries are on its side, so far those that have commented on the ruling, including the US, Australia, New Zealand, Japan and India, have all called on both sides to respect the decision. Not a single leader has joined China in calling the tribunal illegitimate. Underneath its brave face, China knows that by defying the world it has wounded itself.

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Frank Ching opened The Wall Street Journal’s Bureau in China in 1979. He is now a Hong Kong-based writer on Chinese affairs.

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