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Seiji Kurosawa

【#387(Special)】I Saw South China Sea Tribunal Fair and Neutral

Seiji Kurosawa / 2016.07.15 (Fri)

July 13, 2016

     An arbitral ruling has come out on a Philippine-China dispute over the South China Sea. The ruling on July 12 denied China’s claim to historic rights in the sea within the so-called nine-dash line, endorsing the Philippines’ assertion almost completely. As expected, Chinese Foreign Ministry rejected the ruling outright. However, as the tribunal provided China with an opportunity to rebut the Philippine assertion and gave considerations to claims by Vietnam and Malaysia, it can be judged as having remained fair and neutral in the trial.

Ruling rejects China’s nine-dash line claim
     The Philippines filed the arbitration petition on the dispute under the United Nations Convention on the Law of the Sea in January 2013. An international tribunal was organized under the provisions of Annex VII to UNCLOS and the Permanent Court of Arbitration in The Hague took charge of arbitral proceedings.
     One of the legal grounds for China’s rejection of the arbitration is that China has declared the exclusion of conflicts regarding border demarcation, historic title, military operations and law enforcement activities from dispute settlement procedures under UNCLOS. Chinese Foreign Ministry has argued that the arbitral trial itself was invalid as the dispute essentially related to the territorial sovereignty.
     In October last year, however, the tribunal concluded that it had jurisdiction on seven points (concerning the legal status of features in the South China Sea, etc.) out of the 15 Philippine claims in the petition because these points were not subject to the exclusion. In addition, the July 12 ruling concluded there was no legal basis for China to claim historic rights within the nine-dash line, although the tribunal had withheld a decision on whether it had jurisdiction on the matter last October. Furthermore, the ruling criticized China for its severe harm to the marine environment.
     China took control of Scarborough Shoal from the Philippines in 2012 and has constructed artificial islands on seven reefs in the South China Sea. The ruling identified Scarborough Shoal, Johnson Reef, Cuarteron Reef, Fiery Cross Reef and Gaven Reefs as “rocks” and Subi, Hughes and Mischief Reefs as “low-tide elevations” that are submerged at high tide. Rocks are accompanied by territorial waters but not by the exclusive economic zone. Low-tide elevations are accompanied by neither territorial waters nor the EEZ. However rocks and low-tide elevations are transformed through reclamation, they cannot be turned into legal “islands” accompanied by both territorial waters and the EEZ.

Liberal maritime countries should exert pressure on China
     Some other countries have refused to accept arbitral tribunal rulings. However, they were not as absurd as China. It is natural for China to be viewed as being absent from the tribunal because of its inability to rebut Philippine claims. While ordinary countries may comply with arbitral rulings, China has refused to recognize the tribunal itself or accept the ruling, branding the ruling as nonbinding and a mere scrap of paper. Such attitude could only be viewed as a challenge to the existing maritime order. Should new Philippine President Rodrigo Duterte shelve the issue in a bid to receive economic aid from China, the South China Sea may go red.
     The arbitral ruling is final and binding. However, there is no means to enforce it. Whether the ruling is meaningful or not depends on responses from not only the parties to the dispute but also liberal maritime countries such as Japan, the United States and Australia. Without leaving any more control by China to be established on the South China Sea, liberal maritime countries should immediately conduct power diplomacy

Seiji Kurosawa is Secretary General of the Japan Institute for National Fundamentals.