Hague Court Strikes Down Beijing’s South China Sea Claims
In a victory for the Philippines, an international tribunal ruled China’s expansive claims in the South China Sea are illegal, setting the stage for more tension in one of the world’s flashpoints.
An international tribunal delivered a stinging rebuke to China on Tuesday, ruling unanimously that Beijing has no historic title to the huge swathe of the South China Sea that it claims.
The decision by the Permanent Court of Arbitration in The Hague represents the first explicit, legal repudiation of China’s claims to the waters of the South China Sea, a territorial land grab that has in recent years soured relations between Beijing and many of its neighbors, especially the Philippines. China refused to recognize the tribunal and has repeatedly said that it will ignore the decision, which is binding and not subject to appeal.
The much-awaited decision will almost certainly further inflame tensions in the South China Sea, which has seen frequent clashes between Chinese coast guard ships and fishermen and vessels from other countries. The United States has over the past year sought to uphold international law and freedom of navigation in one of the world’s busiest waterways by dispatching navy ships to sail through waters that Beijing has tried to fence off.
As expected, Beijing dismissed the ruling, reiterating previous arguments questioning the tribunal’s ability to even hear the case. “China opposes and will never accept any claim or action based on those awards,” the Chinese government said in a written statement. Chinese Foreign Minister Wang Yi dismissed the ruling as a “political farce” and insisted that, despite the decision, Beijing has sovereignty over the islets and waters of the South China Sea.
“Any attempt by any force to undermine or deny in any way China’s territorial sovereignty and maritime rights and interests will be futile and will fail,” he said.
Wary of China’s reaction to the verdict, the Philippines called for “restraint.”
“Our experts are studying this award with the care and thoroughness that this significant arbitral outcome deserves,” Foreign Affairs Secretary Perfecto Yasay told reporters.
“We call on all those concerned to exercise restraint and sobriety. The Philippines strongly affirms its respect for this milestone decision,” he said. The new Philippine president, Rodrigo Duterte, has signaled that he is open to talks with China over the maritime disputes. But domestically, it is an explosive issue, which means that Duterte may have limited room to tender an olive branch to Beijing.
State Department spokesman John Kirby said in a statement that Washington supports the rule of law, and that the arbitration panel’s ruling is “final and legally binding on both China and the Philippines. The United States expresses its hope and expectation that both parties will comply with their obligations.”
The ruling also got a chilly reception in Taipei, which, though at odds with Beijing on most issues, sees eye to eye with mainland China on the nine-dashed line, a map which was drafted by the Nationalist government shortly after the Second World War. The government in Taiwan called the ruling “completely unacceptable” and said it was not binding.
In the wake of the ruling by the panel, which China has spent months trying to discredit, experts said Beijing could respond in a variety of ways. It could send more fighter jets to bases it is building on the disputed islets, or it could declare an air defense identification zone in part of the South China Sea, much as it did in 2013 in the East China Sea.
China could also ratchet up the fight with the Philippines by carrying out dredging and reclamation work at Scarborough Shoal, one of the features close to the Philippine coast and a reef at the center of the spat between the two countries. Or China could even try to blockade Philippine marines currently stationed at one of the tiny atolls, potentially threatening a showdown with the United States, which has a mutual defense treaty with Manila.
Dennis Blair, a former commander of U.S. Pacific forces and former Director of National Intelligence, called the ruling a “strong rebuke of China’s activities in the South China Sea over the last 15 years,” and said that Beijing’s next steps will be crucial.
“If China made a move on Scarborough Shoal, to actually bring in dredgers to build that up, I would think that would be a major crisis in the region,” Blair said. Manila would likely be forced to respond, potentially putting Washington in a very tough position, he said. The ruling also strengthened Manila’s claim to one disputed shoal, known as Second Thomas Shoal, where Manila has deployed marines, which could drag the United States into any military dispute there between the Philippines and China.
Experts said that China could choose to stop short of provocative action and instead take more incremental steps to signal Beijing was not backing off of its claims. Under that scenario, China would continue to build hangars on artificial islands in the Spratlys and draw boundaries or “baselines” connecting reefs and rocks it claims. That would pave the way for an eventual air defense identification zone in which China would demand all aircraft seek permission before flying into the area.
China’s track record over the past few years suggests it will press on with its aggressive tactics despite the court ruling, and possibly start dredging work at Scarborough Shoal, said James Kraska, professor of international law at the U.S. Naval War College.
“Unfortunately, if the past is the best indication, it doesn’t look real good in my view,” Kraska told FP. “I just don’t know if the U.S. has enough influence to stop China from doing something they want to do.”
Ultimately, whether China seeks to raise the stakes in the South China Sea or defuse tensions is up to Beijing’s top leaders. “The only person who knows what China’s response will be is Xi Jinping. It’s going to be his decision and nobody else’s,” said Gregory Poling, director of the Asia Maritime Transparency Initiative and a fellow at the Center for Strategic and International Studies.
What is clear, experts said, is that the ruling presents Beijing with a pivotal decision: If it completely ignores the unanimous ruling, based on the Law of the Sea that China helped write and has ratified, that could put paid to the notion that China seeks to be a responsible global stakeholder. Analysts said a brusque dismissal of the award could call into question Beijing’s commitment to other aspects of international law, from the rules regulating global trade to the fight against climate change. China could become “increasingly isolated” if it continues to ignore the ruling, Kraska said.
Thirty years ago, a similar international panel ruled against the United States in a case concerning the mining of harbors in Nicaragua. Washington ignored the ruling, and saw its international credibility take a big hit.
At the same time, the panel’s conclusion promises to give plenty of legal ammunition to countries like Vietnam, which has for years had its own territorial dispute with China over a different set of islands — the Paracels — in the South China Sea. Tuesday’s ruling could open the door for Hanoi to seek arbitration itself, potentially further straining relations with China that were already badly damaged two years ago after Beijing dispatched an oil rig to Vietnamese waters.
The ruling, capstone to a 2013 complaint brought by the Philippines, considered three broad issues. Does China, as it maintains through its proclamation of a so-called “nine dash line,” have “historic rights” to the waters around the Spratly Islands, hundreds of miles from the Chinese coast? Do those tiny reefs and rocks actually amount to islands, which would give their owner exclusive claim to the economic resources nearby? And has China, in its rush to dredge coral atolls to build artificial islands and fence off the area from the Philippines, violated the U.N. Convention on the Law of the Sea?
The panel found that while Chinese fishermen have in the past plied the waters around the Spratlys, that does not amount to any sort of legal claim to the resources there today.
“There was no legal basis for China to claim historic rights to resources,” the panel ruled, “within the sea areas falling within the ‘nine-dash line’.”
The tribunal also determined that none of the features in the Spratly Islands — with names like Mischief Reef and Fiery Cross Reef — amount to actual islands. That means that, regardless of which country has sovereignty over those rocks and atolls (a question the Hague panel did not consider), they do not grant any legal entitlement to a 200-mile wide exclusive economic zone in the surrounding waters.
Finally, the panel found that China had violated the Philippines’ rights in the waters off its coast, by, for example, interfering with Manila’s ability to drill for oil or fish in seas that by law belong to the Philippines.
“The Tribunal therefore concluded that China had violated the Philippines’ sovereign rights with respect to its exclusive economic zone and continental shelf,” the panel noted in its nearly-500 page ruling.
The tribunal also determined that China had violated environmental provisions of the international law of the sea by tearing up coral reefs to build artificial islands. And the panel also found in the past three years China has aggravated the dispute with the Philippines due to its land reclamation campaign and aggressive and illegal behavior by Chinese ships.
The panel concluded that both countries, since they ratified the Law of the Sea Treaty, are bound to comply with Tuesday’s decision.
NOTE: This article was updated Tuesday afternoon.
Photo credit: VISUAL CHINA GROUP/Getty
Keith Johnson is Foreign Policy’s global geoeconomics correspondent. @KFJ_FP