The Philippines v. China verdict: China’s crossroads
15 Jul 2016|Jay L Batongbacal/ The Strategist
‘An overwhelming victory’ is how Paul Reichler, lead counsel of the Philippines, describes the Award issued by Permanent Court of Arbitration Tribunal in the case of Philippines v. China concerning the South China Sea (SCS). The Tribunal unanimously granted all but a handful of Manila’s claims, and in doing so laid down a significant number of rulings that will reshape the discourse over the SCS disputes in the years to come.
First and foremost, the Tribunal definitively characterised and then struck down the most expansive of all the various claims to the SCS: China’s historic rights claims, as represented by the ‘nine-dash line’ map. The Tribunal held that clearly, any and all historic rights claims to waters beyond the territorial sea were relinquished and abandoned by China when it signed and ratified UNCLOS and thereby agreed with the establishment of the EEZ and continental shelf regimes in favour of all coastal states.
Second, the Tribunal comprehensively characterised all of the features in the Spratly Islands region and Scarborough Shoal. The islands and rocks created pockets of disputed territorial sovereignty, but the sea areas around them could be jurisdictionally allocated to adjacent coastal states in accordance with UNCLOS.
Third, the Tribunal found that China’s interference with Filipino fishing and petroleum exploration activities, construction of artificial islands, and failure to prevent Chinese fishermen from fishing in the Philippines’ EEZ, were all in violation of the Philippines’ sovereign rights over its EEZ and continental shelf. The Tribunal also determined that China’s construction of seven artificial islands and failure to prevent its fishermen from engaging in destructive fishing practices, violated its obligations to preserve and protect the marine environment.
Lastly, the Tribunal found that by creating artificial islands, China violated its obligations to refrain from taking actions that cause permanent and irreparable harm to the marine environment and acted prejudicially against the rights of the Philippines. China thereby acted contrary to international law by aggravating the dispute.
The Award has serious implications that ripple across the Southeast Asian region and the rest of the Asia-Pacific. It closes the door on China’s claims to excessive maritime jurisdictions in the SCS based on historic rights. The vindication of the Philippines’ rights to its EEZ and continental shelf outside of these disputed enclaves implies that beyond the mainland coasts and enclaves of islands or rocks, the SCS is open to either coastal state exclusive resource rights or common international uses.
The smaller littoral states of the SCS naturally gain from the legal reinforcement of their EEZ and continental shelf entitlements extending from their mainland coasts. If China insists on enforcing its now-illegitimate historic rights claims in these EEZ and continental shelf areas, it would clearly be acting illegally under international law and the coastal states would be entitled to take legal or other actions to defend their rights and jurisdictions. China must therefore immediately scale back and halt its maritime assertion and coercion activities against its neighbours, such as blocking and threatening non-Chinese vessels engaged in resource exploration and exploitation, and protecting Chinese fishing in other states’ waters. Read more…