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Derechos | Equipo Nizkor
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Derechos | Equipo Nizkor
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12Jul16
Beijing's claims to South China Sea rejected by international tribunal
An international tribunal ruled Tuesday that China has no legal basis to claim historic rights to the South China Sea — a major blow to Beijing that could further inflame tensions.
China immediately rejected the decision by the Permanent Court of Arbitration in The Hague, but it was hailed as a landmark victory for those challenging Beijing's reach into waters with key strategic and commercial significance.
The State Department called on China to abide by the ruling and urged nations bordering the South China Sea to avoid "provocative statements or actions."
China insists it has full rights over the sea and has moved ahead with construction of island sites that the West and others worry could have military dimensions and disrupt important shipping routes.
The tribunal also ruled that China had violated the Philippines' sovereign rights by constructing artificial islands there and had caused "permanent irreparable harm to the coral reef ecosystem."
China has repeatedly made it clear it will not accept, recognize or implement the ruling on the South China Sea, the hotly contested waterway that contains some of the world's busiest shipping routes.
In a statement, the Foreign Ministry said China "solemnly declares that the award is null and void and has no binding force." It said that "China's territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected by those awards."
But the verdict, which strongly favored the Philippines against China, will nevertheless undermine Beijing's claim to sovereignty within what it calls the "nine-dash line," which it draws around most of the South China Sea.
In a statement, the Philippines' secretary of foreign affairs, Perfecto Yasay Jr., welcomed the ruling, calling it a "milestone." But he also urged "restraint and sobriety" among all concerned.
"The verdict is the best-case scenario that few thought possible," said Richard Javad Heydarian, an assistant professor of political science at Manila's De La Salle University.
"It is a clean sweep for the Philippines, with the tribunal rejecting China's nine-dashed line and historical rights claim as well as censuring its aggressive activities in the area and, among others, the ecological damage caused by its reclamation activity."
The State Department said it was still studying the decision but that it "hopes and expects" both China and the Philippines will abide by the ruling.
"In the aftermath of this important decision, we urge all claimants to avoid provocative statements or actions," said State Department spokesman John Kirby. "This decision can and should serve as a new opportunity to renew efforts to address maritime disputes peacefully."
At the International Crisis Group, senior China analyst Yanmei Xie called the verdict "as unfavorable to China as it can be." She said it "significantly limits" the maritime rights that China can legally claim and declares many of its activities illegal.
In Washington, Bonnie Glaser, senior adviser for Asia at the Center for Strategic and International Studies, said the Philippines won "a major victory," with judges ruling in its favor on almost every point. "China's reaction is likely to be extremely tough. Fasten your seat belts," she said.
In China, Chen Xiangmiao, an assistant research fellow at National Institute for South China Sea Studies, said he was "totally surprised" by the decision, especially on the nine-dash line.
"The nine-dash line is the foundation of China's claim to sovereignty activities in the South China Sea, which has been smashed by the ruling," he said. "Without this foundation, China has less territory to claim in the South China Sea. However, it's hard to say how much the ruling will restrain China, given the reaction from the Chinese government."
The Philippines took China to the Permanent Court of Arbitration (PCA) in The Hague in January 2013 after the Chinese navy seized control of Scarborough Shoal, a largely submerged chain of reefs and rocks set amid rich fishing grounds off the main Philippine island of Luzon.
The ruling could lead to more friction between China and the United States.
Washington has been leading international calls for China to respect the tribunal's decision, and the issue has become a key test of its ability to maintain the leading U.S. role in Asian security in the face of China's rising power.
Beijing refused to participate in the arbitration process and instead launched a global propaganda campaign to make its case. Foreign Minister Wang Yi was quoted as telling his counterpart, Secretary of State John F. Kerry, last week that the process was a "farce." His ministry said it was delusional to think China would bow to diplomatic pressure to accept the ruling.
Some $5 trillion in commerce, roughly one-third of global trade, flows through the South China Sea every year, while its fisheries account for 12 percent of the global catch, and significant oil and gas reserves are thought to exist under the sea floor. The waters are some of the most fiercely disputed in the world, with claims to various parts staked by Brunei, Malaysia, Vietnam and Taiwan, in addition to China and the Philippines.
China's nine-dash line, a version of which first appeared on its maps in 1947, encompasses the vast majority of the South China Sea, and Beijing uses it to claim sovereignty over almost all the islands, reefs and rocks in the sea.
Beijing says its sovereignty claims date back hundreds of years and are "indisputable." In the past two years, it has undertaken a massive land-reclamation process in the sea, turning seven reefs and rocks into nascent military outposts, with several airstrips and radar installations under construction.
But the tribunal backed the Philippines' submission that none of those features are islands — as defined by the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
Only natural (rather than artificially constructed) islands that can sustain human habitation qualify for both 12 nautical miles of territorial waters and 200-nautical mile Exclusive Economic Zones (EEZs) under UNCLOS.
In other words, the ruling drastically undermines China's claim to the waters surrounding the island bases it is in the process of building.
The tribunal found 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." It went on to say that China had violated the Philippines' sovereign rights by interfering with its fishing and petroleum exploration, building artificial islands and failing to prevent Chinese fishermen from fishing there.
It also ruled that Chinese authorities were aware that Chinese fishermen had "harvested endangered sea turtles, coral and giant clams on a substantial scale" in the South China Sea and had not fulfilled Beijing's obligation under the Law of the Sea to prevent such activities.
China says the tribunal lacked the jurisdiction to rule on Manila's various submissions, and says it has abused its powers.
In Washington last week, former senior official Dai Bingguo derided the ruling as "nothing more than a scrap of paper," a refrain echoed by state media here. China also argues that the Philippines had previously agreed to resolve the dispute bilaterally.
But its legal case is undermined by a key provision in UNCLOS, which states that the tribunal alone can decide if it has the jurisdiction to rule on issues before it. In October last year, the tribunal decided it indeed had jurisdiction to rule on several key issues brought by Manila. The tribunal's decision is legally binding, but it lacks any mechanism to enforce its rulings.
In rejecting the decision, Beijing is certainly not alone. No permanent member of the U.N. Security Council has ever complied with a ruling by the PCA on the Law of the Sea, wrote Graham Allison, director of the Harvard Kennedy School's Belfer Center for Science and International Affairs. "In fact, none of the five permanent members of the U.N. Security Council have ever accepted any international court's ruling when (in their view) it infringed on their sovereignty or national security interests," Allison wrote in The Diplomat.
The United States has never ratified UNCLOS, and rejected a 1986 verdict at the International Court of Justice ordering it to pay reparations to Nicaragua for mining its harbors, he noted.
Nevertheless, the case is an important indication of China's willingness to submit itself to international law as its clout grows, and a sign of what kind of global power it wants to become.
This is a breathtaking indictment of China's position in the South China Sea," said David Welch, CIGI Chair of Global Security at the Balsillie School of International Affairs, in Waterloo, Ontario. "It will be very difficult for Beijing to pretend that the tribunal's finding does not matter legally, politically, or practically. How China reacts over the next days and weeks will essentially determine its international standing for decades."
Despite its efforts to dismiss and discredit the process, Beijing is far from indifferent about the result, analysts said.
What happens next will depend on how it and the other key players — the Philippines and the United States, as well as Vietnam — react.
The United States has already conducted several "freedom of navigation" exercises in the South China Sea, sending warships within 12 nautical miles of islands, reefs and rocks controlled by China and other claimants. It is also rebuilding military ties with the Philippines. China cites this as evidence that President Obama's actions — not its island-building - are responsible for militarizing the region.
Last week, the U.S. Navy said it had also sent destroyers to patrol close to some of the islands and reefs held by China, although those ships stayed just outside the 12-nautical-mile zone. Washington might decide to step up its patrols after the ruling.
China, meanwhile, could attempt to reinforce its de facto control by declaring an Air Defense Identification Zone (ADIZ) over the South China Sea, under which any incoming aircraft would be required to declare their presence to Chinese authorities. Another option might be to build a new military base on Scarborough Shoal.
"It must be made clear that China needs to exercise restraint and resist taking further actions that would exacerbate tensions," said Paul Haenle, director of the Carnegie-Tsinghua Center in Beijing.
"But it is also important that the Philippines, the U.S. and others are level and restrained in their responses as well. There is no need for triumphalism or gloating that could provoke greater nationalist sentiment in China."
Indeed, there are good reasons for all sides to react cautiously.
China hosts a summit of the Group of 20 major economies in September, and is unlikely to want the meeting to take place amid an intense dispute over the South China Sea.
It is also likely to want time to gauge the reaction from Manila, where newly elected President Rodrigo Duterte has sent mixed signals over the issue.
Early in his presidential campaign, Duterte, a long-time mayor with limited foreign policy experience, implied he might be willing to soften his stance on China in return for Chinese infrastructure spending. Later, in a play to nationalist sentiment, he promised to ride a water scooter to Scarborough Shoal to plant the Philippine flag.
Since his inauguration, he has struck a more cautious tone. His challenge will be to appear strong at home to satisfy national pride, without further angering Beijing
[Source: By Simon Denyer and Emily Rauhala, The Washington Post, Beijing, 12Jul16]
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