South China Sea: Did the ruling sink the rule of law?

by Tan Keng Tat / August 31, 2016 /  The Straits Times

On July 12, an arbitral tribunal, constituted under Annex VII of the United Nations Convention on the Law of the Sea (Unclos), ruled in favour of the Philippines at the Permanent Court of Arbitration at the Hague (PCA).

The tribunal made a landmark decision that, as between the Philippines and China, there was no legal basis for China to claim historic rights to resources, in excess of the rights provided for by Unclos, within the “nine-dash” line map that China has been using to assert its claims of sovereignty over territories in the South China Sea.

The tribunal also ruled, inter alia, that China had infringed on the Philippines’ rights to fish stocks and resources within its 200-nautical-mile exclusive economic zone (EEZ).

China rejected the tribunal’s ruling as null and void on substantive and procedural grounds.

Professor Myron Nordquist, of the University of Virginia School of Law, has opined that the ruling was a “huge mistake” and should be “criticised severely”.

In my view as a private researcher who has researched the issue for years, the tribunal’s ruling was also weighed down by a litany of controversies as there were eight troubling issues arising from the ruling.

First, some media reports wrongly attributed the ruling to a UN-backed PCA to elevate its impact but that ended when UN spokesman Stephane Dujarric confirmed that the PCA “has nothing to do with the UN”. He added: “The UN doesn’t have a position on the legal and procedural merits of the South China Sea arbitration case.”

The PCA is not a court. It only provides a registry and secretarial assistance to “arbitral tribunals constituted to resolve specific disputes” for a fee.

Second is the question of sovereignty. In the 1887 Sino-Franco Convention, France agreed that all the isles east of the Treaty Delimitation Line were assigned to China. That included the Spratly Islands, among others. France attempted to occupy the Spratlys in 1930. China protested and reminded France of the 1887 convention.

In 1933, colonial Philippines contemplated annexing the Spratlys, but then US Secretary of State Cordell Hull cautioned that “the islands of the Philippine group which the United States acquired from Spain by the treaty of 1898, were only those within the limits described in Article III”. He added: “It may be observed that no mention has been found of Spain having exercised sovereignty over, or having laid claim to, any of these (Spratly) islands.”

Japan invaded China in 1937. In the fog of war, France occupied the Spratlys in 1938. Japan evicted the French and colonised the Spratlys in 1939.

After its defeat, Japan ceded its claim to the Spratlys, returning them to China.

According to Professor John Anthony Carty, British archives show that “there is no dispute regarding the Nansha (Spratly) Islands and that China is the sole title-holder.” Read more…

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