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Hague Court Decision a Gift to South China Sea Nations
The other littoral states of the South China Sea owe a debt of gratitude to the Philippines for bringing its case against China to the Permanent Court of Arbitration at The Hague.
More than just an indictment of China’s actions and rebuttal of its outlandish claims, the rulings are so sweeping that other countries can sit back and rely on them without having to take their own cases to this or any other court. They can simply state that they will abide by its rulings.
The most fundamental decision by the court was that none of the Spratly islands – let alone underwater shoals such as James Shoal off Sarawak which China claims – count for purposes of claiming a 200- nautical mile Exclusive Economic Zone.
This will be pleasing not just for those with direct disputes with China over islands, but Indonesia, which has recently begun to take action against Chinese fishing boats operating off its Natuna islands. China’s claims of fishing rights have been based either on its now-infamous nine-dash line and on being within 200-nautical miles of islands claimed by China.
The court is not empowered to determine national ownership of rocks and islets but can rule on whether they are sufficiently self-supporting to quality for an EEZ rather than a 12-mile territorial limit.
This ruling has profound implications for all oil and gas exploration around the region. Legally, it gives as free hand to Indonesia to develop – should it be commercially viable – the gas fields off Natuna. Even more significantly, it sharply criticised China for harassing Philippine exploration of the Reed Bank, which it deemed well within Philippine EEZ and on its continental shelf. It noted that nearby reefs, including China-occupied Mischief Reef, were underwater at high tide and did not qualify as islands.
China of course shows no signs of voluntarily scaling down its claims or stop pursuing the more expansive ones. On the other hand, the other counties are not stupid enough to start a war with China because of this ruling. But what the ruling does is to harden the claimant's position that China's expansive claims to the EEZ and continental shelf (i.e., different issues from the island disputes) are wrong, and rightly so. But it will clarify to other countries on who is (at least more) in the wrong, and will also strengthen the US's position in the freedom of navigation dispute with China. This will all increase resistance to China's pursuit of its claim.
What this resistance will lead to is anyone's guess. If China keeps pushing, there might be more conflicts. But even without this ruling, other countries will still have to draw a line in the sand -- or the sea -- somewhere, albeit further back, and China will try to push past that line and there will be conflicts anyway even if there wasn't this ruling, e.g., the oil rig incident in 2014. This ruling allows the line to be more forward and helps the resistance to be a little bit stronger. China is opportunistic and in face of strong resistance it will hesitate in the long run even if in the short term it act tough and huff and puff to avoid losing face.
China violated Manila’s sovereign rights. China’s island building on these reefs was not only a violation of these rights but had aggravated the dispute and done “irreparable harm” to the marine environment.
All this will be music to the ears of the Vietnamese whose own explorations on the continental shelf off its coasts have likewise been harassed by China. Malaysia too has to a lesser degree faced Chinese intrusion though its government has become too beholden to Beijing to make much noise.
The issue of the Scarborough (Panatag) Shoal however remains open to further wrangling – even assuming that China in practice gradually steps back from it claims to the whole sea. Its location just 125 miles from Subic Bay, where the US has naval forces, the shoal, gives it strategic importance.
It has effectively been occupied by armed Chinese vessels for the past two years. The Court ruled that it included a rock above sea level and thus ownership was not within its jurisdiction. However, it concluded that Philippine as well as Chinese had fishing rights there and China had violated those of the Philippines by obstructing its vessels.
On the broader question of China’s widely claimed “historic rights”, which ignore the history of the non-Chinese who inhabit most of the South China Sea coastline, the court was largely silent. Rather than getting into discussion of history, it simply concluded that the Convention itself, laying down rights such as the EEZ, superseded previous claims.
The Convention had once considered such pre-existing rights and claims but decided not to adopt them. It did however make a sweeping but crucial general point that though Chinese navigators and fishermen, like those of other states, had made use of the islands there was no evidence that China had historically exercised exclusive control over the water or their resources. The nine-dash line had no legal basis.
The court judgment not merely supported almost all Philippine claims. It did so in surprisingly strong language. Among others points, it accused China of doing nothing to protect coral reefs and other aspects of the ecosystem or stop its fishermen damaging coral reefs and harvesting endangered species.
China must all along have known that it was likely to lose on several points, hence its refusal to accept the legitimacy of the court or its findings. But the extent of the rebuke must have come as a shock to a Beijing used to getting its own way through force or money power.
The court may be seen to have a western bias but the fact that the rulings were unanimous gives them extra weight. Making the decision out to be part of a US plot to surround and contain China may well work at home, long fed xenophobia based on concocted history. It may well now want to punish the Philippines by being even more aggressive. But it cannot escape the fact that the judgment is being cheered all around the region, particularly those countries inhabited by the brown-skinned peoples historically viewed as inferior by China. They know that this is not primarily an issue of China versus the US but of China versus their rights to their adjacent seas.
China has largely itself to blame for the way it has escalated its sea claims over the past five years or so. Will it now quietly stage a strategic retreat without officially abandoning the claims? Or will nationalism drive it further, in particular to build up Scarborough shoal to enhance its confrontation with the US (and other navies) using Subic?
It may seem a problem for President Duterte who had been talking about China in conciliatory terms and looking for infrastructure investment. But he recognises that his reputation could suffer irreparable damage if he is now seen to compromise on sovereignty issues particularly given the sweeping nature of the judgement.
It may also be a problem for Taiwan’s new president Tsai. Taiwan occupied the largest Spratly island but has been told that this provides no EEZ. She would surely like to accept the Court’s ruling and be seen to be a responsible international citizen. But any such move would bring another avalanche of insults and threats from Beijing over such “traitorous” behavior..