South China Sea: China’s Achilles Heel?

In an eleven-page press release, the Permanent Court of Arbitration has given its unanimous award by the Tribunal under Annex VII to the United Nation Convention on the Laws of the Sea (the “Convention”) in the arbitration instituted by the Republic of the Philippines against the People’s Republic of China on the South China Sea.

The tribunal noted, “China has repeatedly stated “it will neither accept nor participate in the arbitration unilaterally initiated by the Philippines.” Annex VII, however, provides that the “[a]bsence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” Annex VII also provides that, in the event that a party does not participate in the proceedings, a tribunal “must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.” Accordingly, throughout these proceedings, the Tribunal has taken steps to test the accuracy of the Philippines’ claims, including by requesting further written submissions from the Philippines, by questioning the Philippines both prior to and during two hearings, by appointing independent experts to report to the Tribunal on technical matters, and by obtaining historical evidence concerning features in the South China Sea and providing it to the Parties for comment.”

China, the Tribunal noted “ has also made clear—through the publication of a Position Paper in December 2014 and in other official statements—that, in its view, the Tribunal lacks jurisdiction in this matter. Article 288 of the Convention provides that: “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.” Accordingly, the Tribunal convened a hearing on jurisdiction and admissibility in July 2015 and rendered an Award on Jurisdiction and Admissibility on 29 October 2015, deciding some issues of jurisdiction and deferring others for further consideration. The Tribunal then convened a hearing on the merits from 24 to 30 November 2015.”

The Tribunal hence stated, “the Award of today’s date, addresses the issues of jurisdiction not decided in the Award on Jurisdiction and Admissibility and the merits of the Philippines’ claims over which the Tribunal has jurisdiction. The Award is final and binding, as set out in Article 296 of the Convention and Article 11 of Annex VII.”

In the following pages an attempt has been made to reconstruct the events from 1947 to date and present a cogent exposition of the South China Sea drama as it unfolded from the chronology of conflicts beginning in 1974 and has ended on 12 July 2016, with the unanimous award handed down by the Tribunal in favor of the Republic of Philippine against China.

Introduction

The South China Sea has today become one of the most politically sensitive regions in the world - the Permanent Court of Arbitration's ruling as has been discussed at the end of this paper and will be the first time an international court has passed judgment on claims and counter-claims by China, the Philippines, Vietnam, Malaysia and Brunei. Several tense stand offs have already occurred including decades of serious trouble between Vietnam and China and tense stand-offs in 2012 when the Philippine Navy intercepted several Chinese fishermen off the Scarborough Shoal. If China ignores or goes against the court's arbitration, analysts say it could have worrying implications for the stability of the region and weaken an already fragile peace in the sea.

Chronology of Conflict

The following is a summery is chronology of events and conflicts as reported in the press from time to time:

• In 1974 the Chinese seized the Paracels from Vietnam, killing more than 70 Vietnamese troops.
• In 1988 the two sides clashed in the Spratlys, with Vietnam again coming off worse, losing about 60 sailors.
• In early 2012, China and the Philippines engaged in a lengthy maritime stand-off, accusing each other of intrusions in the Scarborough Shoal.
• In July 2012 China angered Vietnam and the Philippines when it formally created Sansha city, an administrative body with its headquarters in the Paracels which it says oversees Chinese territory in the South China Sea.
• Unverified claims that the Chinese navy sabotaged two Vietnamese exploration operations in late 2012 led to large anti-China demonstrations on Vietnam's streets.
• In January 2013, Manila said it was taking China to a UN tribunal under the auspices of the UN Convention on the Laws of the Sea, to challenge its claims.
• In May 2014, the introduction by China of a drilling rig into waters near the Paracel Islands led to multiple collisions between Vietnamese and Chinese ships.
• In April 2015, satellite images showed China building an airstrip on reclaimed land in the Spratlys.
• In October 2015, the US sailed a guided-missile destroyer within 12-nautical miles of the artificial islands - the first in a series of actions planned to assert freedom of navigation in the region. China warned that the US should "not act blindly or make trouble out of nothing".

Geographical Significance

The South China Sea has four clusters of islands, while the ongoing disputes mainly concern the Spratly Islands, with countries asserting incompatible claims. Spratly Island is under Vietnamese control. It has an airport, a migrant population and a military presence. Vietnam’s headquarters for the Spratly Islands are also located here. The Philippines did the same on Thitu Island. Malaysia carried out large-scale reclamation on Swallow Reef, and has built an airport, a harbour, and even hotels in order to transform it into an international tourist spot.

Among the Spratly Islands, 50 are occupied, 29 by Vietnam, five by Malaysia, eight by the Philippines, seven by Mainland China, and one by Taiwan. Although largely uninhabited, the Paracels and the Spratlys may have reserves of natural resources around them. There has been little detailed exploration of the area, so estimates are largely extrapolated from the mineral wealth of neighbouring areas.

The Strategic Significance

The South China Sea is also a major trade corridor, with $5.3 trillion in ship-borne trade passing through the energy-rich, strategic waters of the South China Sea, where China’s territorial claims overlap in parts with Vietnam, the Philippines, Malaysia, Brunei and Taiwan waters each year. As Bill Hayton wrote in this book The South China Sea: The Struggle for Power in Asia that "the best guesses suggest that more than half the world's maritime trade goes through the Straits of Malacca, along with half the world's liquefied natural gas and one third of its crude oil,"

Who claims what?

As China begins to stretch its muscles as a growing superpower, the South China Sea has become a testing ground for whether they will rise as part of the global society or outside it. China claims by far the largest portion of territory - an area defined by the "nine-dash line" which stretches hundreds of miles south and east from its most southerly province of Hainan.

Beijing says its right to the area goes back centuries to when the Paracel and Spratly island chains were regarded as integral parts of the Chinese nation, and in 1947 it issued a map detailing its claims. It showed the two island groups falling entirely within its territory. Those claims are mirrored by Taiwan. Vietnam disputes China's claim while Vietnam says it ruled over both the Paracels and the Spratlys since the 17th Century. Philippines, claims are based on geographical proximity to the Spratly Islands and Scarborough Shoal (known as Huangyan Island in China) - a little more than 100 miles (160 km) from the Philippines and 500 miles from China. Malaysia and Brunei also lay claim to territory in the South China Sea that they say falls within their economic exclusion zones, as defined by UNCLOS.

Both the Philippines and China lay claim to the United Nations Convention on the Law of the Sea. Malaysia claims a small number of islands in the Spratlys. China is in favour bilateral negotiations behind closed doors, while other countries want international mediation. As of now even if the Philippines is successful in its attempts to pursue China at a UN tribunal, China would not be obliged to abide by the ruling. Attempts by members of ASEAN to discuss to resolve the dispute have left the bloc severely divided. The US has repeatedly requested China not to "elbow aside" the countries it is in conflict with over the islands and honor the ruling that has been handed down by the International Tribunal.

What is United Nation Convention of the Laws of the Sea?

The United Nation's Convention on the Law of the Sea, agreed to in 1982, was constitutes to allow countries to clearly lay out who controlled what was off their coastline. In the case of South China Sea dispute, UNCLOS has defined the definition of what each country controls. An island controlled by a country is entitled to a "territorial sea" of 12 nautical miles (22 kilometers) as well as an Exclusive Economic Zone (EEZ) -- whose resources -- such as fish -- the country can exploit, of up to 200 nautical miles (370 kilometers). A rock owned by a state will also generate a 12 nautical mile territorial border but not an economic zone under UNCLOS, while a low-tide elevation grants no territorial benefits at all. Hence these definitions are very important in the South China Sea and in the Philippine's case to the United Nations, as Manila's UNCLOS-mandated Exclusive Economic Zone overlaps with waters claimed by China and Vietnam. This explains why countries are so desperate to grab islands and reefs in the South China Sea to legitimize their claims. Both China and the Philippines are signatories to the convention, as is Vietnam, although several other countries aren't including the United States.

Chinese View Point

China’s approach to the entire possession of South China Sea issue has been beautifully crafted even in its subaltern history where visiting media persons have been shown by the Chinese fishermen in possession of a 600 years old navigation book depicting that they have been using the entire South China Sea as Chinese domain over centuries. Chinese art of creating another such argument towards their territorial claim can be seen when another Western Journalist asked one woman as she prepares to board the cruise ship, and wondered why on earth she has chosen to spend her valuable vacation time visiting a few barren rocks. “We’re not going to enjoy ourselves," she replies. "We've been educated since birth that it's our motherland's sacred territory. It's our duty to go and see."

China claims sovereignty over territory within the U-shaped line, called the Nine Dash Line. The nine-dash line was originally an 11-dash line drawn by the government of the Republic of China in 1947. Although the line has no basis in international law, China has created artificial islands to enhance its effective control over Subi Reef and other areas where both Beijing and Manila staked claims on.

Even scholar like Xue Li, Head International Strategy Division of Institute of World Economics at the Chinese Academy of Social Sciences, in a recent interview accepted that there is an absence of consensus amongst the Chinese scholars on the subject and have four interpretations. First, interpret the line, as maritime borders and that it should be understood as the extension of national borders on the sea, inside which lie internal waters. This would naturally mean that the entire South China Sea belongs to China, second, line as demarcation for claiming sovereignty over islands, which will automatically mean that all islands within the line belong to China. The surrounding sea within 12 nautical miles of each island are hence China’s territorial waters, outside which lie China’s exclusive economic zone, third, line as demarcation for historic rights. This means all islands within the line belong to China and the surrounding waters within 12 nautical miles are China’s territorial waters, fourth, the nine-dash line should be understood as demarcation for sovereignty over islands. When the Chinese government under the Kuomintang in 1947 first drew this line, China was unable to carry out surveys of all the islands to identify their attributes and demarcate the surrounding administrative zones. Xue Li further thinks that the US is overdoing it but concedes that “China has no doubt made mistakes but it also has some legitimate claims and we need not make judgments based on professional knowledge”

China’s Miscalculated Actions

China continued in her aggressive posture right from 2013, by a series of activities to show to the world that she had effective sovereignty rights over the whole of South China Sea, had the rights to create artificial islands, conduct military exercises, and possible declaration of an Air Defense Identification Zone (ADIZ) by indicating that China feels threatened by a possible ruling by the Tribunal.

China also made three mistakes. First, take a stand that it was beyond the Tribunals mandate to interpret the application of the convention. Second, link the case with its invocation of Article 298 in 2006, when Beijing opted out voluntarily out of compulsory arbitration under the UNCLOS. Third, the last gambit was the invocation of Declaration of Conduct of Parties (DOC) in criticizing the Philippines submission. Ultimately it was China’s “indisputable sovereignty” claim and her policy of not negotiating the sovereignty issue left no other choice for Philippines but to go to the Tribunal for arbitration.

China almost entered into brinkmanship by announcing to hold military drills ahead of the Tribunal ruling. It declared a no sail zone in the entire South China Sea during the war games conducted from 5 July to 11 July. China went to the extent of targeting the nationality of a Japanese judge who had overseen the Tribunal formation and charged Japan with a conspiracy to steer the decision away from favoring China. In essence China has tried every trick to change the global perceptions about South China Sea.

So what exactly does the Tribunal’s award say? The Award has gone in favor of the Republic of the Philippines and totally against The Peoples Republic of China. Appended below are the four major unanimous Awards:

1. Historic Rights and the ‘Nine-Dash Line’: The Tribunal found that it has jurisdiction to consider the Parties’ dispute concerning historic rights and the source of maritime entitlements in the South China Sea. On the merits, the Tribunal concluded that the Convention comprehensively allocates rights to maritime areas and that protections for pre-existing rights to resources were considered, but not adopted in the Convention. Accordingly, the Tribunal concluded that, to the extent China had historic rights to resources in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention. The Tribunal also noted that, although Chinese navigators and fishermen, as well as those of other States, had historically made use of the islands in the South China Sea, there was no evidence that China had historically exercised exclusive control over the waters or their resources. 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’.
2. Status of Features: The Tribunal next considered entitlements to maritime areas and the status of features. The Tribunal first undertook an evaluation of whether certain reefs claimed by China are above water at high tide. Features that are above water at high tide generate an entitlement to at least a 12 nautical mile territorial sea, whereas features that are submerged at high tide do not. The Tribunal noted that the reefs have been heavily modified by land reclamation and construction, recalled that the Convention classifies features on their natural condition, and relied on historical materials in evaluating the features. The Tribunal then considered whether any of the features claimed by China could generate maritime zones beyond 12 nautical miles. Under the Convention, islands generate an exclusive economic zone of 200 nautical miles and a continental shelf, but “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” The Tribunal concluded that this provision depends upon the objective capacity of a feature, in its natural condition, to sustain either a stable community of people or economic activity that is not dependent on outside resources or purely extractive in nature. The Tribunal noted that the current presence of official personnel on many of the features is dependent on outside support and not reflective of the capacity of the features. The Tribunal found historical evidence to be more relevant and noted that the Spratly Islands were historically used by small groups of fishermen and that several Japanese fishing and guano mining enterprises were attempted. The Tribunal concluded that such transient use does not constitute inhabitation by a stable community and that all of the historical economic activity had been extractive. Accordingly, the Tribunal concluded that none of the Spratly Islands is capable of generating extended maritime zones. The Tribunal also held that the Spratly Islands cannot generate maritime zones collectively as a unit. Having found that none of the features claimed by China was capable of generating an exclusive economic zone, the Tribunal found that it could—without delimiting a boundary—declare 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.
3. Lawfulness of Chinese Actions: The Tribunal next considered the lawfulness of Chinese actions in the South China Sea. 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.
4. Harm to Marine Environment: The Tribunal considered the effect on the marine environment of China’s recent large-scale land reclamation and construction of artificial islands at seven features in the Spratly Islands and 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.
5. Aggravation of Dispute: Finally, the Tribunal considered whether China’s actions since the commencement of the arbitration had aggravated the dispute between the Parties. The Tribunal found that it lacked jurisdiction to consider the implications of a stand-off between Philippine marines and Chinese naval and law enforcement vessels at Second Thomas Shoal, holding that this dispute involved military activities and was therefore excluded from compulsory settlement. The Tribunal found, however, 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.

Observations

It is too early to make a complete analysis or project the impact of the Award handed down by the Tribunal. The extensive media reports may serve temporarily as a window to assess the future of the Tribunal Award, which is in favor of Philippines. The following are the salient observations of importance:

1. There was no legal basis for China to claim historic rights to the bulk of the South China Sea.
2. China has rejected the decision by the Permanent Court of Arbitration, which is likely to have lasting implications for the resource-rich hot spot, which includes one of the world's busiest sea lanes. "China neither accepts nor recognizes it," the Ministry of Foreign Affairs said in a statement.
3. Philippines government said it "strongly affirms its respect for this milestone decision as an important contribution to ongoing disputes in the South China Sea."
4. The Tribunal concluded that China's doesn't have the right to marine resources within its "nine dash line," which extends hundreds of miles to the south and east of its island province of Hainan and covers some 90% of the disputed waters.
5. Natalie Klein, an international law professor at Macquarie Law School in Australia, said the ruling was a "decisive win" for the Philippines.
6. There could be heightening friction in a region already bristling with tension, especially if it provokes a defiant reaction from China.
7. The lawyers who argued the case for Philippines stated that "If China's nine-dash line is invalid as to the Philippines, it is equally invalid to those States and, indeed, the rest of the international community,"
8. Japan has issued a statement saying it "strongly expects that the parties' compliance with this ruling will eventually lead to the peaceful settlement of disputes in the South China Sea."
9. The U.S. takes no position on the territorial disputes in the South China Sea, but has called for an immediate end to land reclamation.
10. The United States as a major player in the region will continue to deploy warships and military aircraft around the South China Sea, citing international law and freedom of movement. This will naturally continue to trigger harsh warnings from China.
11. Because China had no rights to the area as an Exclusive Economic Zone, the tribunal found that some of its activities in the region were in breach of the Philippines' sovereign rights.
12. The Tribunal found that China had caused "severe harm" to coral around the site of its artificial islands. It had also "violated its obligation to preserve and protect fragile ecosystems."
13. The Tribunal said that it "lacked the jurisdiction to consider the implications of a stand-off" between the Chinese and Philippines military, specifically at Second Thomas Shoal, and said that any resolution of the dispute was "excluded from compulsory settlement."
14. The Tribunal hasn't ordered China to take any particular steps to remedy the situation, dismantle construction on the islands or provide reparations to the Philippines.
15. Natalie Klein observed that "In terms of enforcement, much will depend on what the Philippines is now prepared to assert against China based on the award and China's responses to those assertions, "
16. The Tribunal said that it "lacked the jurisdiction to consider the implications of a stand-off" between the Chinese and Philippines military, specifically at Second Thomas Shoal, and said that any resolution of the dispute was "excluded from compulsory settlement."

The Tribunal Award of July 12 could well define the trajectory of maritime events in Asia for years to come.

Professor Gautam Sen is presently Emeritus Professor at MILE and Visiting Professor at the DDU Gorakhpur University, Adjunct Professor National Institute of Advance Studies, Bangalore, Founder Member and Member Governing Council, Centre For Advance Strategic Studies, Pune.

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Published Date: 13^th July 2016, Image Source: http://www.straitstimes.com [3]
(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Vivekananda International Foundation)