China: Tribunal Ruling 'Null and Void', Will Not Affect South China Sea Claims
Image Credit: United Nations photo

China: Tribunal Ruling 'Null and Void', Will Not Affect South China Sea Claims

 
 

An arbitral tribunal has issued its final award in the case brought by the Philippines challenging China’s maritime claims and actions in the South China Sea. As my colleague Ankit Panda noted, the ruling from The Hague went against China in every major aspect. Most notably, the tribunal ruled that China may not claim maritime entitlements beyond those permitted by the United Nations Convention on the Law of the Sea (UNCLOS), and found that China’s nine-dash line claim is thus invalid. In addition, the tribunal greatly limited the scope of the maritime rights permitted under UNCLOS by ruling that none of the Spratly Islands are legally “islands” under the Convention – meaning none of the features are capable of generating a 200 nautical mile exclusive economic zone.

China, however, has been adamant since the case was filed in 2013 that it would not accept the ruling, arguing that the tribunal has no jurisdiction, and that the arbitration is invalid because it was filed unilaterally by the Philippines. Unsurprisingly, China stuck to those positions after the final award was issued on Tuesday.

President Xi Jinping himself, speaking on the sidelines of the China-EU summit in Beijing, reiterated that China will not accept the tribunal’s award. According to Xinhua, “Xi said China’s territorial sovereignty and maritime interests in South China Sea, under any circumstances, will not be affected by the award.”

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China’s Foreign Ministry also issued a statement repeating its position that “the award is null and void and has no binding force.” The statement reiterates China’s rationale for rejecting the award (for a detailed explanation, see Xue Li’s explanation of China’s position from last year). More generally, the statement also reaffirmed that “China does not accept any means of third party dispute settlement” when it comes to maritime disputes.

Accordingly, the Ministry said, “China’s territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected by those awards. China opposes and will never accept any claim or action based on those awards.”

To drive home that point, just after the award came out, the Chinese government issued a statement on “China’ s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea” in both Chinese and English.  The statement does not address the substance of the tribunal’s ruling, but does repeat several claims that were directly contradicted by the tribunal.

The statement’s first point reiterates China’s sovereignty and rights in the South China Sea, based on historical claims:

“The activities of the Chinese people in the South China Sea date back to over 2,000 years ago. China is the first to have discovered, named, and explored and exploited Nanhai Zhudao [the South China Sea Islands] and relevant waters, and the first to have exercised sovereignty and jurisdiction over them continuously, peacefully and effectively, thus establishing territorial sovereignty and relevant rights and interests in the South China Sea.”

The tribunal, by contrast, found that “there was no evidence that China had historically exercised exclusive control over the waters or their resources.” And regardless, the tribunal noted that any preexisting “historical rights” are negated by the exclusive economic zones laid out under UNCLOS.

Interestingly, China also laid out a vague (and not necessarily comprehensive) list of its claims in the South China Sea, using the terminology of modern international law – as well as the catch-all term “historic rights.” Beijing’s position is that:

i. China has sovereignty over Nanhai Zhudao [the South China Sea Islands], consisting of Dongsha Qundao [the Pratas Islands], Xisha Qundao [the Paracel Islands], Zhongsha Qundao [including Macclesfield Bank and Scarborough Shoal], and Nansha Qundao [the Spratly Islands];

ii. China has internal waters, territorial sea and contiguous zone, based on Nanhai Zhudao;

iii. China has exclusive economic zone and continental shelf, based on Nanhai Zhudao;

iv. China has historic rights in the South China Sea.

The tribunal, meanwhile, not only struck down the “historic rights” claim but precluded the declaration of an exclusive economic zone or continental shelf based on any of the Spratly Islands or Scarborough Shoal (the other features were not included in the Philippines’ case). High-tide elevations would generate a territorial sea, but it’s unclear what basis China would use to claim unspecified “internal waters” in the South China Sea, as the tribunal has ruled that UNCLOS does not allow for the drawing of straight baselines around feature groups like the Spratly Islands.

Despite these discrepancies, the fear of some analysts that China might withdraw from UNCLOS after an unfavorable ruling seems unlikely to come true. The Foreign Ministry’s statement made it clear that “The Chinese government will continue to abide by international law and basic norms governing international relations as enshrined in the Charter of the United Nations.”

The statement also reiterated China’s long-standing commitment to resolving the issue through “negotiations and consultations” – provided those discussions take place “on the basis of respecting historical facts” (as interpreted by China, of course). Pending a final demarcation, the government statement on China’s maritime rights offered up the possibility of “provisional arrangements of a practical nature, including joint development in relevant maritime areas.”

However, Chinese Ambassador to the U.S. Cui Tiankai told an audience at a Washington, D.C.-based think tank that he worried the tribunal’s ruling would “do a great deal of damage” to the potential for negotiations. The ruling will “open the door for abusing arbitration procedures” and “undermine” the motivation to negotiate, Cui told a gathering at the Center for Strategic and International Studies. He vowed that, on China’s part, “diplomatic efforts will not be blocked by a scrap of paper.”

There is one silver lining to the arbitral tribunal’s decision from China’s perspective. Though it struck down the idea of “historic rights” in the South China Sea, it did agree with the long-standing Chinese claim that it has traditional fishing rights in the area – as do fishermen of the various surrounding states. Thus, the tribunal took China to task for preventing Philippine fishermen from accessing Scarborough Shoal but noted that “it would reach the same conclusion with respect to the traditional fishing rights of Chinese fishermen if the Philippines were to prevent fishing by Chinese nationals at Scarborough Shoal.”

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