Double Blow for China in the South China Sea

China has been put on the back foot with a unanimous decision by a UN-backed court in the Hague, Netherlands, that the court has jurisdiction over a case brought by the Philippines against Beijing’s repeated intrusions into what Manila claims are its waters.

Given that the court ruled it has jurisdiction, it is considered likely that once it takes up the case in 2016, it will rule in favor of the Philippines’ claims, according to Senior Associate Justice Carpio of the Philippine Supreme Court, who told the Manila-based Rappler news website that: "Once the jurisdiction is won by the Philippines, and the tribunal says it has jurisdiction, then we practically know the tribunal will strike down the 9-dash line." The possibility now is that Beijing will get a bigger headache if countries such as Vietnam decide to take up the case as well, or file their own.

US Navy Arrives

Beijing was dealt another setback this week when the US Navy, in a show of force sailed a guided missile destroyer into waters around three islets that China has turned into artificial islands and claims them as exclusive economic territory. The Chinese reaction has been described as “muted” although US Ambassador Max Baucus was summoned to the Foreign Ministry to explain the incursion.

The Chinese navy took no forceful action beyond sending its own destroyer and a smaller ship to shadow the guided missile destroyer, the USS Lassen. Two longtime China watchers, in an email to Asia Sentinel, described the Chinese reaction as “extraordinarily tempered” despite the huffing and puffing. One said the Beijing leadership may well have seen the writing on the wall given the combined pressure of the US Navy’s Freedom of Navigation operations, the Philippine court case and behind-the-scenes diplomatic discussions that almost certainly preceded the US foray into the newly built islands.

China’s armies of extreme nationalistic netizens and retired military officer pundits have been berating the Chinese leadership for capitulating to the Americans. “China only flaps its lips,” was one typical comment reported on Weibo.

However, it would be extraordinary for the Chinese to climb down from their position of total ownership of the sea.

The territorial claims to the specks in the Spratly and Paracel Islands by all of the nations surrounding the South China Sea are critical because of the mineral wealth believed to lie below them. Since 2009, when China began to assert its right to most of the sea, tensions have risen, with several encounters, including one between a Chinese drillship and Vietnamese opponents that resulted in the sinking of a Vietnamese vessel.

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China Boycotts UN Tribunal

China has boycotted the Permanent Court of Arbitration in the Hague, Netherlands, which ruled that it has the right to adjudicate the Philippines’ case against China over Beijing’s intrusions into the Spratlys, which lie far closer to the Philippines than to China. The case itself is likely to go ahead in 2016.

China since has claimed virtually almost to the coastlines of the littoral nations via a so-called “nine-dash line” that was formulated by the Kuomintang government of Chiang Kai-shek in 1947 and was largely ignored until Beijing began to press its claims. The six nations, including China, are Vietnam, Taiwan, the Philippines, Malaysia and Brunei. The nine-dash line also runs through a portion of the Natuna Archipelago, Indonesia’s northernmost islets.

Although it has established garrisons on some islets, China has begun to aggressively press its claims in recent months despite objections particularly from Vietnam and the Philippines, dredging up the sea bottom to turn what were rocky specks into full islands capable of allowing for the construction of airports and other facilities while the opponents have largely wrung their hands.

China had claimed that the court has no right to adjudicate the case, which comes under the United Nations Convention on the Law of the Sea (UNCLOS), stating that several treaties with Manila stipulate that border disputes must be resolved via bilateral negotiations instead of going to international courts.

Defense Ministry Huffs, Puffs

China’s Defense Ministry said the military would take “all necessary measures” to any future US incursions into what it says is its territory. “We would urge the US not to continue down the wrong path,” the defense ministry spokesman said. “But if the US side does continue, we will take all necessary measures according to the need." China's resolve to safeguard its national sovereignty and security interests is "rock-solid," he added.

Interestingly, the Global Times, the English-language publication that usually represents the harshest of China’s views of the outside world, did acknowledge that the Un Convention on the Law of the Sea does govern the situation although it claimed that the islands China built are legitimate. Under UNCLOS, the reefs and shoals in the South China Sea are not entitled to exclusive economic zones.

“We should analyze the actual condition of the US harassment,” the publication said. “It seems that the US only wants to display its presence as it didn't raise the imprudent demand that China stops island-building. It has no intention to launch a military clash with China. It is just the US's political show.”

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At the Hague, the tribunal’s statement asserting its right to hear the case was accompanied by a nine-page press release that said the decision was unanimous and concerns only whether the body has jurisdiction to consider the Philippines’ claims. It has “also held that China’s decision not to participate in these proceedings does not deprive the Tribunal of jurisdiction and that the Philippines’ decision to commence arbitration unilaterally was not an abuse of the Convention’s dispute settlement procedures. The tribunal rejected the argument set out in a Chinese position paper that the dispute is actually about sovereignty over the islands ‘and therefore beyond the Tribunal’s jurisdiction. The Tribunal has also rejected the argument set out in China’s Position Paper that the Parties’ dispute is actually about the delimitation of a maritime boundary between them and therefore excluded from the Tribunal’s jurisdiction through a declaration made by China in 2006.