It is Beijing’s fault that China lost big in the South China Sea ruling

July 17, 2016/ Julian Ku /  Quartz

The award issued last week by an arbitral tribunal sitting in The Hague can only be described as a tremendous legal victory for the Philippines over China. The tribunal, which was formed pursuant to the UN Convention on the Law of the Sea (UNCLOS), ruled in favor of the Philippines on 14 of 15 claims. On every issues of substance, the tribunal ruled in favor of the Philippines. Few experts who followed the award closely had predicted such a sweeping, one-sided result. I certainly did not.

But taking a step back after reviewing the award, perhaps I should not have been surprised. China’s legal arguments for maritime rights in the South China Sea were always weak since the Chinese mainland is much farther away than any of its neighbors. China exacerbated these weaknesses by refusing to participate in the tribunal in any way, and then launching a global public relations campaign that dramatically heightened the award’s significance in the eyes of the global media.
In the award, the tribunal ruled that China had violated its obligations under UNCLOS in a variety of ways. First, the tribunal held that China’s nine-dash-line claim, which refers to a line delineating some form of Chinese sovereign rights over nearly 80% of the South China Sea, was inconsistent with China’s obligations under UNCLOS. Whereas the treaty requires all states to limit maritime rights to certain distances from land, the nine-dash line represented a broad claim to “historic rights.” China may well have had historic rights to fishing in the region dating back centuries, the tribunal ruled, but it gave up such rights when it agreed to join UNCLOS in 1996.
In return for joining UNCLOS and giving up its historic rights, the tribunal noted, China gained internationally recognized exclusive economic zones (EEZs) stretching out over 200 nautical miles from its mainland coasts and islands. Without UNCLOS, the tribunal pointed out, China would not have had such broad, internationally recognized maritime rights near its mainland coast and islands.

Second, the tribunal found that none of the land features claimed or occupied by China in the Spratly Islands (a group of land features near the Philippines) are actually “islands” as defined by UNCLOS. This means that even if China has sovereignty over all of the land features in the Spratlys, China cannot claim rights to control fishing and undersea hydrocarbons under an EEZ because there are no “islands” as defined by UNCLOS in the whole Spratly region. Read more…

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