Andrew S. Erickson

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.

2. 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.

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.

• 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.

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.

• 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.

5. 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.

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