http://themiddleground.sg/2016/07/12/hague-ruling-china-rebuked-least-six-times/Hague ruling: China rebuked at least six times
Jul 12, 2016 10.56PM | Suhaile Md linkedin
by Suhaile Md
IF CHINA held any hopes that its “nine-dash line” argument claiming most of the South China Sea would hold up, they were dashed earlier today. The Hague Permanent Court of Arbitration (PCA) delivered a stinging rebuke to China, which had refused to acknowledge the jurisdiction of the PCA and had stayed out of the arbitration process initiated by the Philippines. This is despite both countries being signatories of the United Nations Convention on the Law of the Sea (Unclos), which sets out the boundaries of the territorial seas of nations, as well as the management of marine resources.
The Philippines had made 15 submissions to the Hague, accusing China of violating the convention by, among others, “[failing] to prevent its nationals and vessels from exploiting the living resources”, “unlawfully [preventing] Philippine fishermen from pursuing their livelihoods”, “causing serious risk of collision to Philippine vessels”, and other actions in the South China Sea.
The Philippines and China are in a tussle over jurisdiction of seven reefs, and more importantly, the waters surrounding them. Although China declined to participate, the tribunal went ahead to assess the Philippines claims, taking into account China’s own position on those claims as articulated in the past.
Today, after three years and vigorous attempts by China to argue that the matter should be settled in bilateral negotiations and not in multinational fora, the PCA did not mince its words in castigating China.
REBUKE 1: That nine-dash line has no legal basis.
China had argued that it has claim over the South China Sea within a “nine-dash line” which would have included the Spratlys, a chain of reefs, seven of which are controlled by the Chinese currently. These are Subi Reef, Gaven Reef, Hughes Reef, Johnson South Reef, Fiery Cross Reef, Cuarteron Reef, and Mischief Reef. It is a “historic” claim, that is, it has always been the case. But the tribunal noted that UNCLOS made this redundant. Even before UNCLOS in 1982, the waters were considered the “high seas”, which refers to all parts of the sea that are not included in the territorial sea or in the internal waters of a State.
“...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.” – PCA
REBUKE 2: The reefs are more rocks than islands.
A rock extends territorial sea by 12 nautical miles while an island confers a 200 nautical mile Exclusive economic zone (EEZ). The deciding factor? Islands must be capable of naturally sustaining human habitation – no importing of food and fresh water.
China has been reclaiming land to expand the Spratly reefs. Not only that, it has built structures like runways, ports and military buildings. But the PCA noted that since Unclos classifies such marine features based on their natural setting, reclamation does not change its status. Also, combining all the reefs together to present them as a single island is a no go. Basically: Once a rock, always a rock.
“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… ” – PCA
REBUKE 3: China has violated fishing rights.
Now, for years, Chinese fishermen have been ranging into disputed territory to feed their voracious demand for seafood. So hypothetically, if the PCA had recognised the Spratly’s as islands, the entitlement of EEZ would have likely encouraged China to be even more assertive in defending its fishermen’s incursion into disputed territory
But that’s not what happened: The PCA said that China has behaved unlawfully by allowing its fishing boats into Philippines’ EEZ and interfering with their “fishing and petroleum exploration”. Two years back, for example, a Chinese coastguard ship used water cannons to chase Filipino fishermen away from disputed waters in the South China Sea. China does not have the authority to block the Philippines from fishing in the disputed seas, the PCA ruled.
“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”… 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.” – PCA
REBUKE 4: Failed to protect marine life.
Besides the harm to marine ecosystems thanks to the huge reclamation projects by China in the Spratlys, the PCA notes that Chinese fishermen have not been responsible either: Overfishing and harvesting of marine life has seriously harmed the coral reef environment, said the PCA. Just last month, for example, it was reported that South China Sea reefs were “decimated” thanks to the bulk harvesting of giant clams. The clams are sought after for ornaments and the demand for it drove prices up in the past few years – which itself triggered more harvesting, a vicious cycle. Actions like this were not missed by the PCA.
“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.” – PCA
REBUKE 5: Sending law enforcement vessels to block others is illegal.
Chinese ships had some near misses with Filipino ships due to its aggressive attempts to block the latter. In 2012, for instance, a Philippines Bureau of Fisheries and Aquatic Resources vessel tried to reach a Filipino Coast Guard ship near the Scarborough Shoal to resupply it. A Chinese law enforcement vessel attempted to block it off, but the manoeuvres were dangerous. In some cases, the vessels were less than 90 metres away from each other. Stunts like this have been deemed illegal now.
“The Tribunal further held that Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.” – PCA
REBUKE 6: Went ahead to reclaim and build even though a verdict is pending.
It’s a simple point: The ownership is in dispute, so don’t pretend it’s exclusively your sand on which you can do anything you like – building ports and runways, for example. The PCA calls it an Aggravation of Dispute. While PCA does not have the authority to decide who the area belongs to, it does have the ambit to say if a state is being responsible in its action within a disputed area. In other words, I cannot say you are the owner, but I can say that you are not being responsible with whatever it is you are claiming to own – especially since it might belong to someone else. And the PCA has ruled that China has been irresponsible.
“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.” – PCA
Philippines had actually asked for a declaration from the PCA that China shall in the future respect the rights and freedoms of the Philippines. PCA however had this to say: “The Tribunal recalled that it is a fundamental principle of international law that bad faith is not presumed and noted that Article 11 of Annex VII provides that the “award… shall be complied with by the parties to the dispute.” The Tribunal therefore considered that no further declaration was necessary.
As noted by the PCA, its ruling is binding especially since both the Philippines and China have ratified Unclos in 1984 and 1996 respectively. That means, they are both obliged to follow through with the decision made at The Hague. However, given China’s declaration in the lead up to the ruling today that it will not “accept, recognise or execute” the decision, it remains to be seen how it will react.
Jul 12, 2016 10.56PM | Suhaile Md linkedin
by Suhaile Md
IF CHINA held any hopes that its “nine-dash line” argument claiming most of the South China Sea would hold up, they were dashed earlier today. The Hague Permanent Court of Arbitration (PCA) delivered a stinging rebuke to China, which had refused to acknowledge the jurisdiction of the PCA and had stayed out of the arbitration process initiated by the Philippines. This is despite both countries being signatories of the United Nations Convention on the Law of the Sea (Unclos), which sets out the boundaries of the territorial seas of nations, as well as the management of marine resources.
The Philippines had made 15 submissions to the Hague, accusing China of violating the convention by, among others, “[failing] to prevent its nationals and vessels from exploiting the living resources”, “unlawfully [preventing] Philippine fishermen from pursuing their livelihoods”, “causing serious risk of collision to Philippine vessels”, and other actions in the South China Sea.
The Philippines and China are in a tussle over jurisdiction of seven reefs, and more importantly, the waters surrounding them. Although China declined to participate, the tribunal went ahead to assess the Philippines claims, taking into account China’s own position on those claims as articulated in the past.
Today, after three years and vigorous attempts by China to argue that the matter should be settled in bilateral negotiations and not in multinational fora, the PCA did not mince its words in castigating China.
REBUKE 1: That nine-dash line has no legal basis.
China had argued that it has claim over the South China Sea within a “nine-dash line” which would have included the Spratlys, a chain of reefs, seven of which are controlled by the Chinese currently. These are Subi Reef, Gaven Reef, Hughes Reef, Johnson South Reef, Fiery Cross Reef, Cuarteron Reef, and Mischief Reef. It is a “historic” claim, that is, it has always been the case. But the tribunal noted that UNCLOS made this redundant. Even before UNCLOS in 1982, the waters were considered the “high seas”, which refers to all parts of the sea that are not included in the territorial sea or in the internal waters of a State.
“...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.” – PCA
REBUKE 2: The reefs are more rocks than islands.
A rock extends territorial sea by 12 nautical miles while an island confers a 200 nautical mile Exclusive economic zone (EEZ). The deciding factor? Islands must be capable of naturally sustaining human habitation – no importing of food and fresh water.
China has been reclaiming land to expand the Spratly reefs. Not only that, it has built structures like runways, ports and military buildings. But the PCA noted that since Unclos classifies such marine features based on their natural setting, reclamation does not change its status. Also, combining all the reefs together to present them as a single island is a no go. Basically: Once a rock, always a rock.
“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… ” – PCA
REBUKE 3: China has violated fishing rights.
Now, for years, Chinese fishermen have been ranging into disputed territory to feed their voracious demand for seafood. So hypothetically, if the PCA had recognised the Spratly’s as islands, the entitlement of EEZ would have likely encouraged China to be even more assertive in defending its fishermen’s incursion into disputed territory
But that’s not what happened: The PCA said that China has behaved unlawfully by allowing its fishing boats into Philippines’ EEZ and interfering with their “fishing and petroleum exploration”. Two years back, for example, a Chinese coastguard ship used water cannons to chase Filipino fishermen away from disputed waters in the South China Sea. China does not have the authority to block the Philippines from fishing in the disputed seas, the PCA ruled.
“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”… 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.” – PCA
REBUKE 4: Failed to protect marine life.
Besides the harm to marine ecosystems thanks to the huge reclamation projects by China in the Spratlys, the PCA notes that Chinese fishermen have not been responsible either: Overfishing and harvesting of marine life has seriously harmed the coral reef environment, said the PCA. Just last month, for example, it was reported that South China Sea reefs were “decimated” thanks to the bulk harvesting of giant clams. The clams are sought after for ornaments and the demand for it drove prices up in the past few years – which itself triggered more harvesting, a vicious cycle. Actions like this were not missed by the PCA.
“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.” – PCA
REBUKE 5: Sending law enforcement vessels to block others is illegal.
Chinese ships had some near misses with Filipino ships due to its aggressive attempts to block the latter. In 2012, for instance, a Philippines Bureau of Fisheries and Aquatic Resources vessel tried to reach a Filipino Coast Guard ship near the Scarborough Shoal to resupply it. A Chinese law enforcement vessel attempted to block it off, but the manoeuvres were dangerous. In some cases, the vessels were less than 90 metres away from each other. Stunts like this have been deemed illegal now.
“The Tribunal further held that Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.” – PCA
REBUKE 6: Went ahead to reclaim and build even though a verdict is pending.
It’s a simple point: The ownership is in dispute, so don’t pretend it’s exclusively your sand on which you can do anything you like – building ports and runways, for example. The PCA calls it an Aggravation of Dispute. While PCA does not have the authority to decide who the area belongs to, it does have the ambit to say if a state is being responsible in its action within a disputed area. In other words, I cannot say you are the owner, but I can say that you are not being responsible with whatever it is you are claiming to own – especially since it might belong to someone else. And the PCA has ruled that China has been irresponsible.
“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.” – PCA
Philippines had actually asked for a declaration from the PCA that China shall in the future respect the rights and freedoms of the Philippines. PCA however had this to say: “The Tribunal recalled that it is a fundamental principle of international law that bad faith is not presumed and noted that Article 11 of Annex VII provides that the “award… shall be complied with by the parties to the dispute.” The Tribunal therefore considered that no further declaration was necessary.
As noted by the PCA, its ruling is binding especially since both the Philippines and China have ratified Unclos in 1984 and 1996 respectively. That means, they are both obliged to follow through with the decision made at The Hague. However, given China’s declaration in the lead up to the ruling today that it will not “accept, recognise or execute” the decision, it remains to be seen how it will react.
