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Tuesday, July 12, 2016

South China Sea: China Loses "9-Dash Line", "Island Claims" and "Historical Use" Claims in Court, Denies It

China denies that "Western" justice is just as Philippines wins South China Sea case against China
China has lost a key international legal case over strategic reefs and atolls that it claims would give it control over disputed waters of the South China Sea.

The judgment by an international tribunal in The Hague is overwhelmingly in favour of claims by the Philippines and will increase global diplomatic pressure on Beijing to scale back military expansion in the sensitive area. By depriving certain outcrops of territorial-generating status, the ruling effectively punches holes in China’s all-encompassing “nine-dash” line that stretches deep into the South China Sea.

China reacted angrily to the verdict, which declares large areas of the sea to be neutral international waters or the exclusive economic zones of other countries. Xinhua, the country’s official news agency, hit out at what it described as an “ill-founded” ruling that was “naturally null and void”.
More here:
On Tuesday morning, a tribunal of five judges at Hague-based Permanent Court of Arbitration issued a highly anticipated and unanimous award in Republic of Philippines v. People’s Republic of China, a case filed in 2013 by Manila concerning maritime entitlements and the status of features in the South China Sea, among other issues.

The Tribunal’s award is highly favorable to the Philippines, ruling that China’s nine-dash line claim and accompanying claims to historic rights have no validity under international law; that no feature in the Spratly Islands, including Taiwan-occupied Itu Aba (or Taiping Island), is an island under the United Nations Convention on the Law of the Sea (UNCLOS); and that the behavior of Chinese ships physically obstructing Philippine vessels is unlawful.

Perhaps the most significant finding–and the one most likely to disturb China–is the Tribunal’s award that China’s nine-dash line and claim to historic rights in the South China Sea are both invalid under international law.
The Diplomat website posted the decision here in a 500-page pdf.

UPDATE: Of course, the Permanent Court of Arbitration has no navy to enforce its ruling. For that matter, neither has the Philippines to any real extent.

UPDATE2: Excellent analysis by CSIS here. Enforcement to be "moral suasion?"

UPDATE3: Last part of the decision. "COnvention" refers to the U.N. Convention on the Law of the Sea (UNCLOS):
In relation to the merits of the Parties’ disputes, the Tribunal:

(1) DECLARES that, as between the Philippines and China, the Convention defines
the scope of maritime entitlements in the South China Sea, which may not extend
beyond the limits imposed therein;
(2) DECLARES that, as between the Philippines and China, China’s claims to historic
rights, or other sovereign rights or jurisdiction, with respect to the maritime areas
of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ are
contrary to the Convention and without lawful effect to the extent that they exceed
the geographic and substantive limits of China’s maritime entitlements under the
Convention; and further DECLARES that the Convention superseded any historic
rights, or other sovereign rights or jurisdiction, in excess of the limits imposed
therein;
(3) FINDS, with respect to the status of features in the South China Sea:
a. that it has sufficient information concerning tidal conditions in the South
China Sea such that the practical considerations concerning the selection of
the vertical datum and tidal model referenced in paragraphs 401 and 403 of
the Tribunal’s Award on Jurisdiction and Admissibility of 29 October 2015
do not pose an impediment to the identification of the status of features;
b. that Scarborough Shoal, Gaven Reef (North), McKennan Reef, Johnson
Reef, Cuarteron Reef, and Fiery Cross Reef include, or in their natural
condition did include, naturally formed areas of land, surrounded by water,
which are above water at high tide, within the meaning of Article 121(1) of
the Convention;
c. that Subi Reef, Gaven Reef (South), Hughes Reef, Mischief Reef, and
Second Thomas Shoal, are low-tide elevations, within the meaning of
Article 13 of the Convention;
d. that Subi Reef lies within 12 nautical miles of the high-tide feature of Sandy
Cay on the reefs to the west of Thitu;
e. that Gaven Reef (South) lies within 12 nautical miles of the high-tide
features of Gaven Reef (North) and Namyit Island; and
f. that Hughes Reef lies within 12 nautical miles of the high-tide features of
McKennan Reef and Sin Cowe Island;
(4) DECLARES that, as low-tide elevations, Mischief Reef and Second Thomas Shoal
do not generate entitlements to a territorial sea, exclusive economic zone, or
continental shelf and are not features that are capable of appropriation;
(5) DECLARES that, as low-tide elevations, Subi Reef, Gaven Reef (South), and
Hughes Reef do not generate entitlements to a territorial sea, exclusive economic
zone, or continental shelf and are not features that are capable of appropriation, but
may be used as the baseline for measuring the breadth of the territorial sea of
high-tide features situated at a distance not exceeding the breadth of the territorial
sea;
(6) DECLARES that Scarborough Shoal, Gaven Reef (North), McKennan Reef,
Johnson Reef, Cuarteron Reef, and Fiery Cross Reef, in their natural condition, are
rocks that cannot sustain human habitation or economic life of their own, within
the meaning of Article 121(3) of the Convention and accordingly that Scarborough
Shoal, Gaven Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef, and
Fiery Cross Reef generate no entitlement to an exclusive economic zone or
continental shelf;
(7) FINDS with respect to the status of other features in the South China Sea:
a. that none of the high-tide features in the Spratly Islands, in their natural
condition, are capable of sustaining human habitation or economic life of
their own within the meaning of Article 121(3) of the Convention;
b. that none of the high-tide features in the Spratly Islands generate
entitlements to an exclusive economic zone or continental shelf; and
c. that therefore there is no entitlement to an exclusive economic zone or
continental shelf generated by any feature claimed by China that would
overlap the entitlements of the Philippines in the area of Mischief Reef and
Second Thomas Shoal; and
DECLARES that Mischief Reef and Second Thomas Shoal are within the
exclusive economic zone and continental shelf of the Philippines;
(8) DECLARES that China has, through the operation of its marine surveillance
vessels in relation to M/V Veritas Voyager on 1 and 2 March 2011 breached its
obligations under Article 77 of the Convention with respect to the Philippines’
sovereign rights over the non-living resources of its continental shelf in the area of
Reed Bank;
(9) DECLARES that China has, by promulgating its 2012 moratorium on fishing in the
South China Sea, without exception for areas of the South China Sea falling within
the exclusive economic zone of the Philippines and without limiting the
moratorium to Chinese flagged vessels, breached its obligations under Article 56 of the Convention with respect to the Philippines’ sovereign rights over the living
resources of its exclusive economic zone;
(10) FINDS, with respect to fishing by Chinese vessels at Mischief Reef and Second
Thomas Shoal:
a. that, in May 2013, fishermen from Chinese flagged vessels engaged in
fishing within the Philippines’ exclusive economic zone at Mischief Reef
and Second Thomas Shoal; and
b. that China, through the operation of its marine surveillance vessels, was
aware of, tolerated, and failed to exercise due diligence to prevent such
fishing by Chinese flagged vessels; and
c. that therefore China has failed to exhibit due regard for the Philippines’
sovereign rights with respect to fisheries in its exclusive economic zone; and
DECLARES that China has breached its obligations under Article 58(3) of the
Convention;
(11) FINDS that Scarborough Shoal has been a traditional fishing ground for fishermen
of many nationalities and DECLARES that China has, through the operation of its
official vessels at Scarborough Shoal from May 2012 onwards, unlawfully
prevented fishermen from the Philippines from engaging in traditional fishing at
Scarborough Shoal;
(12) FINDS, with respect to the protection and preservation of the marine environment
in the South China Sea:
a. that fishermen from Chinese flagged vessels have engaged in the harvesting
of endangered species on a significant scale;
b. that fishermen from Chinese flagged vessels have engaged in the harvesting
of giant clams in a manner that is severely destructive of the coral reef
ecosystem; and
c. that China was aware of, tolerated, protected, and failed to prevent the aforementioned
harmful activities; and
DECLARES that China has breached its obligations under Articles 192 and 194(5)
of the Convention;
(13) FINDS further, with respect to the protection and preservation of the marine
environment in the South China Sea:
a. that China’s land reclamation and construction of artificial islands,
installations, and structures at Cuarteron Reef, Fiery Cross Reef, Gaven Reef
(North), Johnson Reef, Hughes Reef, Subi Reef, and Mischief Reef has
caused severe, irreparable harm to the coral reef ecosystem;
b. that China has not cooperated or coordinated with the other States bordering
the South China Sea concerning the protection and preservation of the
marine environment concerning such activities; and
c. that China has failed to communicate an assessment of the potential effects
of such activities on the marine environment, within the meaning of
Article 206 of the Convention; and
DECLARES that China has breached its obligations under Articles 123, 192,
194(1), 194(5), 197, and 206 of the Convention;
(14) With respect to China’s construction of artificial islands, installations, and
structures at Mischief Reef:
a. FINDS that China has engaged in the construction of artificial islands,
installations, and structures at Mischief Reef without the authorisation of the
Philippines;
b. RECALLS (i) its finding that Mischief Reef is a low-tide elevation, (ii) its
declaration that low-tide elevations are not capable of appropriation, and
(iii) its declaration that Mischief Reef is within the exclusive economic zone
and continental shelf of the Philippines; and
c. DECLARES that China has breached Articles 60 and 80 of the Convention
with respect to the Philippines’ sovereign rights in its exclusive economic
zone and continental shelf;
(15) FINDS, with respect to the operation of Chinese law enforcement vessels in the
vicinity of Scarborough Shoal:
a. that China’s operation of its law enforcement vessels on 28 April 2012 and
26 May 2012 created serious risk of collision and danger to Philippine ships
and personnel; and
b. that China’s operation of its law enforcement vessels on 28 April 2012 and
26 May 2012 violated Rules 2, 6, 7, 8, 15, and 16 of the Convention on the
International Regulations for Preventing Collisions at Sea, 1972; and
DECLARES that China has breached its obligations under Article 94 of the
Convention; and
(16) FINDS that, during the time in which these dispute resolution proceedings were
ongoing, China:
a. has built a large artificial island on Mischief Reef, a low-tide elevation
located in the exclusive economic zone of the Philippines;
b. has caused—through its land reclamation and construction of artificial
islands, installations, and structures—severe, irreparable harm to the coral
reef ecosystem at Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven
Reef (North), Johnson Reef, Hughes Reef, and Subi Reef; and
c. has permanently destroyed—through its land reclamation and construction
of artificial islands, installations, and structures—evidence of the natural
condition of Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef
(North), Johnson Reef, Hughes Reef, and Subi Reef; and
FINDS further that China:
d. has aggravated the Parties’ dispute concerning their respective rights and
entitlements in the area of Mischief Reef;
e. has aggravated the Parties’ dispute concerning the protection and
preservation of the marine environment at Mischief Reef;
f. has extended the scope of the Parties’ dispute concerning the protection and
preservation of the marine environment to Cuarteron Reef, Fiery Cross Reef,
Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef; and
g. has aggravated the Parties’ dispute concerning the status of maritime
features in the Spratly Islands and their capacity to generate entitlements to
maritime zones; and
DECLARES that China has breached its obligations pursuant to Articles 279, 296,
and 300 of the Convention, as well as pursuant to general international law, to
abstain from any measure capable of exercising a prejudicial effect in regard to the
execution of the decisions to be given and in general, not to allow any step of any
kind to be taken which might aggravate or extend the dispute during such time as
dispute resolution proceedings were ongoing.

1 comment:

  1. china is way out there..this will slow down their pushy attitude and phony claims.

    ReplyDelete