The Permanent Court of Arbitration (PCA) in The Hague ruled on Tuesday that China has no historical title over the waters of the South China Sea (SCS) and that it has breached the sovereign rights of the Philippines with its actions.
Beijing has, in keeping with its continued stance on the matter, rejected the verdict and reiterated its claimed rights in the SCS.testing.. we are here....
While experts have agreed that there exists no mechanism to enforce the verdict, it is seen as a repudiation of China's claim of historical rights over the various features in the SCS.
What does the verdict say?
According to the official release by the PCA, the tribunal has concluded that there is "no legal basis for China to claim historical rights to resources within the sea areas falling within the ‘nine-dash line’".
Further, the tribunal has concluded that none of the Spratly Islands is capable of generating extended maritime zones and that the Spratly Islands cannot generate maritime zones collectively as a unit. Having found that none of the features claimed by China are capable of generating an exclusive economic zone (EEZ), the tribunal has declared – without delimiting a boundary – that "certain sea areas are within the exclusive economic zone of the Philippines, because those areas are not overlapped by any possible entitlement of China".
The verdict goes on to find China at fault on various others points, including causing environmental damage.
What is China's stand on this?
Responding to the tribunal's award, the Ministry of Foreign Affairs of the People's Republic of China said that it "solemnly declares that the award is null and void and has no binding force. China neither accepts nor recognises it".
On what actions China might take after this verdict, senior fellow at the Brookings Center for East Asia Policy Studies Joseph Chinyong Liow says that it is still too early to say definitively. However, he adds that the concern is that the Chinese will dig their heels in further. "I fear this might well be so, especially given how comprehensively the ruling went against Beijing," warns Liow.
A white paper issued by China's State Council Information Office on Wednesday also points towards a China which is set upon its present course of maintaining its hold in the SCS. The paper, titled China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea, says that the Nanhai Zhudao (the South China Sea Islands) have historically belonged to China. The paper adds that the current dispute began when in the 1970s the Philippines started to "invade and illegally occupy" some islands and reefs of China’s Nansha Qundao (the Nansha Islands) — internationally known as the Spratly Islands.
Stung by the verdict, China might very well decide to take action. "Reputational concerns are unlikely to trump core national interests. In recent days, Chinese political elite repeatedly emphasised sovereign jurisdiction over the South China Sea as a non-negotiable issue. Aggressive tactics by China could come in many forms — setting up an ADIZ (Air Defense Identification Zone) in the South China Sea, accelerating the reclamation of Scarborough shoal, or even an attempt to deploy military forces in waters close to its occupied and reclaimed islands," says Abhijit Singh, who served as a commander in the Indian Navy and writes on maritime issues and littoral security.
Further, China's Defence Ministry has announced that a new guided missile destroyer was formally commissioned at a naval base in the southern island province of Hainan, which has responsibility for the SCS.
How was the case fought?
China, in February 2013, had officially refused to participate in the arbitration process and stated that the tribunal did not have jurisdiction over the case. A position paper on the SCS, issued by the Government of the People's Republic of China in December of 2014, reiterated that it will neither accept nor participate in the arbitration initiated by the Philippines and that the tribunal had no jurisdiction in the matter.
The position paper argued on four points: First, that the case dealt with territorial sovereignty over several maritime features in the SCS and that was beyond the scope of the UNCLOS (United Nations Convention on the Law of the Sea); second, that the Philippines had agreed to settle the dispute through negotiations and that it had breached its obligation under international law by unilaterally initiating the arbitration; third, that even if the subject matter of the arbitration was concerned with the interpretation of the UNCLOS, it would still be dealing with maritime delimitation between the two countries and that China had excluded disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures through its 2006 declaration in accordance with the conventions of the UNCLOS; lastly, that the tribunal had no jurisdiction over the matter as a consequence and that China's rejection of and non-participation in the arbitration stood on "solid ground in international law".
"The Philippines was smart in invoking the provisions of the UNCLOS that allow for compulsory arbitration, but forbid the settling of territorial disputes," explains Singh, who was actively associated in the formulation and articulation of naval doctrines and operational concepts during his tenure with the Flag Officer Doctrines and Concepts.
The Philippines' contentions can be broadly divided into three parts, Singh explains. First, the Philippines questioned the legal validity of China’s “nine-dashed line” in staking claims in the SCS.
The second submission dealt with clarifying the legal status of the maritime features in the SCS. Under the law, an ‘island’ generates territorial waters and an entire EEZ. "The Philippines legal team had contended that features in the SCS were not islands but rocks, atolls, shoals, and low water elevations, which at best generate an entitlement of territorial waters," Singh says. He adds that the Philippines urged the tribunal to "reiterate the lawful position that land added to submerged and above-water line features cannot alter their basic legal status".
Finally, Singh says, Manila questioned Beijing’s “historical rights” – including fishing rights – beyond the limits of its entitlements under the Convention. The Philippines claimed that China had violated the convention by its hazardous practices of harvesting of endangered species and destruction of coral reefs, including areas within the Philippines’ EEZ, irreversibly damaging the regional marine environment.
What will the US do now?
The US has repeatedly called upon all parties concerned, especially China, to accept the verdict and reiterated its support for freedom of navigation in the waters of the SCS.
"The US will continue to reinforce the importance of international law, and that it is in China’s interest to abide by the ruling. It will also have an eye on any increase in Chinese assertiveness in the area. FONOPS (freedom of navigation operations) will continue, but hopefully not too soon after the ruling, and hopefully without too much unnecessary attention and visibility," Liow says.
Where does India stand and what should it do?
In June this year, a joint statement, issued after Prime Minister Narendra Modi met with US President Barack Obama, made mention of the SCS dispute.
This was in line with a previous joint statement, issued during Prime Minister Modi's 2014 trip to the US. The Indo-US joint statement had said: "The leaders expressed concern about rising tensions over maritime territorial disputes, and affirmed the importance of safeguarding maritime security and ensuring freedom of navigation and over flight throughout the region, especially in the South China Sea."
Explaining what India and the US can do on the matter, Liow says: "I think it is important for both parties to emphasise the need for stability and the importance of international law, but not in a way that singles out China. India should also, on its own accord, enhance cooperation with Southeast Asian states."
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On the topic, Singh adds: "New Delhi will need to take a considered stand on the matter by clarifying its interests in the SCS without criticising China. While it is important to reiterate maritime principles, New Delhi must not betray anxiety over China’s growing maritime influence in Asia."
However, India's statements seemed to veer a bit off-course in April this year, when the joint communiqué of the 14th meeting of the foreign ministers of Russia, India and China said: "All related disputes should be addressed through negotiations and agreements between the parties concerned. In this regard the Ministers called for full respect of all provisions of UNCLOS, as well as the Declaration on the Conduct of Parties in the South China Sea (DOC) and the Guidelines for the implementation of the DOC."
China has long held that the disputes in the SCS must be settled within the framework of the DOC and has said that the Philippines was in violation of the same when it approached the tribunal.
However, Liow does not see this as a case of strategic dissonance between the US and India. "I don’t think there really is a difference in position between the US and India. I believe the US also believes that the dispute is best solved by dialogue among the claimant states. The thing is that this should not foreclose the possibility of mediation, or for other channels such as multilateralism," Liow says.