12 July 2016

China’s Claims in the South China Sea Rejected

ChinaFile

I’m honored to participate in this conversation with leading experts including Peter Dutton, M. Taylor Fravel, Orville Schell, and Jessica Chen Weiss.

Andrew S. Erickson, “China’s Claims in the South China Sea Rejected,” ChinaFile, 12 July 2016.

The Arbitration Tribunal at the Hague regarding the United Nations Convention on the Law of the Sea (UNCLOS) has just made a big splash with its landmark ruling in Permanent Court of Arbitration Case No. 2013-19—The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China).

“The Philippines welcomes the issuance today…on the arbitration proceedings initiated by the Philippines with regard to the South China Sea,” Foreign Affairs Secretary Perfecto Yasay rightly told the press this morning.

His welcoming is rippling across the Asia-Pacific and around the world: This is a great victory for Manila, Washington, and all other parties committed to international law; and for the peaceful, open global system that they rightly support.

The Tribunal’s full-length “award” document is a 500-plus-page doorstop, readily digestible by only the most determined of legal experts. Many will be struck by the fact that the Tribunal found Beijing to have violated no fewer than 14 UNCLOS provisions, 6 International Regulations for Preventing Collisions at Sea (COLREGS) rules, and one general rule of international law.

Fortunately for non-specialists, the Tribunal’s the bottom line is clear: China’s sweeping yet undefined South China Sea claims don’t hold water.

Here are the principal related findings:

  1. China’s “nine-dash line” and related “historic rights” claims have no legal basis.
  2. The Spratly features that China claims cannot, individually or collectively, generate an Exclusive Economic Zone (EEZ) for Beijing.
  3. China has violated sovereign rights of the Philippines, illegally interfered with traditional fishing rights of the Philippines, and unlawfully created serious risk of collision by engaging in unsafe navigational practices and obstructing Philippine vessels.
  4. China has violated obligations to preserve and protect the maritime environment generally, conserve fishing stocks, and prevent Chinese fishermen from large-scale harvesting of endangered species. Experts find major damage to reefs.
  5. China’s industrial-scale land reclamation and artificial island construction violates obligations during dispute resolution proceedings and does not confer any additional maritime legal rights to the features themselves.

China doesn’t have to like the Tribunal’s ruling, but—having ratified UNCLOS—it is legally bound to respect it in practice.

Any failure to do so will tarnish Beijing’s reputation badly, and sharply increase already-growing costs in the court of world opinion by stoking broader fears that as it becomes increasingly powerful China will:

  • Abandon previous restraint in word and deed
  • Bully its smaller neighbors
  • Implicitly or explicitly threaten the use of force to resolve disputes
  • Attempt to change precipitously—or else run roughshod over—important international norms that preserve peace across Asia and underwrite the global system on which mutual prosperity depends

Meanwhile, all parties concerned must remain vigilant and prevent China from destabilizing a vital yet vulnerable region that remains haunted by history; or, worse still, from grabbing with coercion or force what it could not—and now clearly cannot—obtain legally.