12 July 2016

Preserving a Rules-Based Order in the South China Sea

Andrew S. Erickson, “Preserving a Rules-Based Order in the South China Sea,” interview with Eleanor Albert, Council on Foreign Relations, 12 July 2016.

A UN tribunal’s ruling upholds the need for a rules-based order that counters China’s efforts to turn the South China Sea region into a sphere of influence, says expert Andrew Erickson.

The Permanent Court of Arbitration in The Hague rejected critical aspects of Beijing’s claims over waters in the South China Sea on Tuesday. The tribunal’s findings uphold the need for a rules-based order to counter Chinese efforts to establish a modern-day sphere of influence, says the U.S. Naval War College’s Andrew Erickson in a written interview. “It would be best for the [Asia-Pacific] region, and China’s standing within it, if Beijing exercises restraint and respects the tribunal’s ruling,” says Erickson. For its part, the United States should carry out more robust freedom of navigation operations (FONOPS) to protect international law and norms, he says.

What’s the significance of the UN tribunal’s findings?

The tribunal has upheld an open, rules-based order for a critical portion of the global maritime commons, saying all are welcome to use it without favor or fear. It does so by rejecting the legal basis for the vast majority of Beijing’s sweeping maritime claims in the South China Sea. U.S. State Department Spokesperson John Kirby welcomed the decision as “an important contribution to the shared goal of a peaceful resolution to disputes in the South China Sea.” Still, Washington can make its own contribution by helping to ensure that right prevails over might, and lead by example by finally ratifying the UN Convention on the Law of the Sea, which it already abides by in its maritime operations. … …

 

Key “Pull quotes” from my interview:

  • “Only under a reliable rules-based order can [the South China Sea region] remain open, free, safe, and prosperous.”
  • “It was an unexpectedly clear judgement against murky Chinese claims, about as dramatic and unambiguous as international law gets.”
  • “China’s extensive construction of artificial ‘islands’ has not added additional maritime legal rights onto the features themselves, and has illicitly aggravated and extended disputes over the contested features.”

 

ADDITIONAL ANALYSIS OF UNCLOS ARBITRAL TRIBUNAL RULING:

 

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.

 

Andrew S. Erickson, Tribunal Rules: China’s South Sea Claims Don’t Hold Water,” The National Interest, 12 July 2016.

The law says what we always knew: China is overstepping in the South China Sea.

The Arbitration Tribunal at the Hague regarding the UN Convention on the Law of the Sea (UNCLOS) has just made a big splash with its landmark ruling in PCA 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 Verdict

The Tribunal’s full-length “award” document is a five-hundred-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 fourteen UNCLOS provisions, six International Regulations for Preventing Collisions at Sea (COLREGS) rules and one general rule of international law.

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

Here are the related principal findings:

  1. China’s “nine-dash-line” and related “historic rights” claims have no legal basis.
  • Key wording: “The Tribunal concluded that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line.’”
  • Significance: “My ancestors fished there” simply doesn’t cut it—for any country, except in territorial seas, e.g., surrounding Scarborough Reef.
  1. The Spratly features that China claims, individually or collectively, cannot generate an Exclusive Economic Zone (EEZ) for Beijing.
  • Key wording: “the Tribunal concluded that none of the Spratly Islands is capable of generating extended maritime zones. . . . the Spratly Islands cannot generate maritime zones collectively as a unit. . . . none of the features claimed by China was capable of generating an exclusive economic zone.”
  • Significance: Of critical legal importance, (in applying the 121(3) rule concerning islands and rocks) the tribunal has ruled that the largest feature, Taiwan-occupied and China-claimed Itu Aba, is a “rock” and hence not entitled to an EEZ or continental shelf. There are therefore no maritime boundary delimitation issues to deal with here, scuttling China’s vehement protests that there are. In fact, there is not much question about boundaries at all, only baseline issues for low-tide elevations (LTEs) within territorial seas of some features.
  1. 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.
  • Key wording: “Having found that certain areas are within the exclusive economic zone of the Philippines, the Tribunal found that China had violated the Philippines’ sovereign rights in its exclusive economic zone by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to prevent Chinese fishermen from fishing in the zone. The Tribunal also held that fishermen from the Philippines (like those from China) had traditional fishing rights at Scarborough Shoal and that China had interfered with these rights in restricting access. The Tribunal further held that Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.”
  • Significance: All countries have their own sovereign rights, and China must honor its constant claims not to interfere with them.
  1. 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.
  • Key wording: “The Tribunal . . . found that China had caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened, or endangered species. The Tribunal also found that Chinese authorities were aware that Chinese fishermen have harvested endangered sea turtles, coral, and giant clams on a substantial scale in the South China Sea (using methods that inflict severe damage on the coral reef environment) and had not fulfilled their obligations to stop such activities.”
  • Significance: Perhaps China’s well-documented devastation of reefs and other fragile natural treasures will finally galvanize foreign environmental organizations, which have long been strangely silent on this subject, to speak out.
  1. China’s industrial-scale land reclamation and feature augmentation violates obligations during dispute resolution proceedings and does not confer any additional maritime legal rights to the features themselves.
  • Key wording: “The Tribunal found . . . that China’s recent large-scale land reclamation and construction of artificial islands was incompatible with the obligations on a State during dispute resolution proceedings, insofar as China has inflicted irreparable harm to the marine environment, built a large artificial island in the Philippines’ exclusive economic zone, and destroyed evidence of the natural condition of features in the South China Sea that formed part of the Parties’ dispute.”
  • Significance: Beijing is aggravating and extending disputes in violation of UNCLOS and international law more broadly. “Fake it till you make it” has no validity in international law.

… …

 

HERE IS THE COMPLETE SET OF DOCUMENTS RELEASED BY THE UNCLOS ARBITRAL TRIBUNAL:

 

Award     (This is the complete 501-page ruling.)

Press Release No. 11 — English     (This and the other two linguistic variants offer a pithy summary of the detailed ruling.)

Press Release No. 11 — French

Press Release No. 11 — Unofficial Chinese Translation

 

———- Forwarded message ———-
From: Gaelle Chevalier <gchevalier@pca-cpa.org>
Date: Tue, Jul 12, 2016 at 5:08 AM
Subject: PCA Press Release: PCA Case No. 2013-19 – The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China)
To: Bureau PCA <bureau@pca-cpa.org>

Please see the attached Press Release issued today by the Permanent Court of Arbitration on behalf of the Arbitral Tribunal in PCA Case No. 2013-19:  The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China).  Also attached is a copy of the Tribunal’s Award.

 

These items will also be made available via the PCA’s website later today.

 

Yours sincerely,

 

Gaëlle Chevalier

Case Manager / Chargée des dossiers

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Permanent Court of Arbitration – Cour permanente d’arbitrage

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