At last, on July 12, the Law of the Sea Tribunal has ruled on the Philippine challenge to Chinese pretensions to maritime rights over an approximately two million km² ocean expanse stretching south from Hainan Island to Singapore. It is an amazing ruling, far broader in scope than China’s South Sea neighbors and their friends dared hope.
In short, the five judge Tribunal:
- has ruled out China’s claim to historic rights over maritime space inside the line, saying that any such rights were extinguished when China ratified UNCLOS, the UN Convention on the Law of the Sea that came into force in 1994.
- has ruled that the islets, reefs and rocks that make up the Spratly archipelago are not entitled to exclusive economic zones (EEZ) or continental shelves. Thus no country can use the Spratlys to claim any rights to waters beyond the 12-nautical-mile territorial sea.
- has therefore ruled out China’s nine dash U-shaped line as a claim to maritime space, and it has been violating the Philippines’ EEZ.
- has ruled that Mischief Reef, which China has seized, and Second Thomas Shoal, which China is blockading, belong to the Philippines’ EEZ.
- has ruled that China has violated UNCLOS in using its law enforcement vessels in a dangerous way, which risks collisions with the Philippines’ vessels.
- has ruled that China’s artificial island building irreparably damaged the marine environment and violates UNCLOS injunctions against pollution of the marine environment.
The disparate group of countries that have been threatened or dismayed by China’s expansionist claims have found it hard to form up a united front. Foiling such solidarity has been a prime Beijing objective, clearly evident in its insistence that it will only discuss the disputes on a bilateral basis and its selective wooing of ASEAN’s most pliable members.
When in 2013, after being roughed up the previous year by China at Scarborough Shoal, a reef just 100 nautical miles west of Luzon Island, the Philippines resolved to challenge the legality of the nine-dash line, other members of ASEAN counseled Manila against such a rash and presumably quixotic act. Vietnam, Malaysia and Brunei, neighbors whose own EEZs were overlapped by China’s expansive claim, were not allowed to join the Philippine suit, but Vietnam has expressed some support for it.
Nearly three years later, Manila’s bold initiative has demolished the putative legal foundation of China’s attempt to generate sovereignty out of bogus historical records and a self-serving interpretation of what UNCLOS means when it discusses ‘features’ and their ability to generate EEZ. The tribunal’s elaborately reasoned 479-page ruling is the equivalent of Archimedes’ famous lever. It gives the ASEAN frontline states – among which we would include Singapore and Indonesia – a common place to stand, and leverage to move the earth, or at least the swath of it called the South China Sea.
The way is now open for Malaysia, Indonesia and Vietnam to sue China, and to have a very good chance of winning unambiguous endorsement of their UNCLOS-compatible EEZ claims. Vietnam could, moreover, rely on the tribunal’s ruling that both China and the Philippines have traditional fishing rights within 12 nautical miles of Scarborough Shoal to sue for China’s recognition of its continuing right to exploit centuries-old fisheries in the vicinity of the Paracel Islands. On the other hand, faced with the prospects of being taken to courts by other countries, who are likely to win, China might withdraw from UNCLOS.
Of particular interest to the US, the tribunal’s ruling demolishes any legal basis for Chinese attempts to restrict freedom of navigation in the southern part of the South China Sea. China has claimed that the Spratlys have 12 nautical mile territorial seas and a 200 nautical mile EEZ; the tribunal has ruled that they have no EEZ. Thus China can no longer apply its own (and dubious) interpretation of how other nations’ military vessels must behave within 200 miles of these features.
Finally, the tribunal’s ruling creates a solid basis for the US, Japan, Australia, India and other nations that especially prize freedom of navigation in, arguably, the world’s most important sea lane to support the Philippines, Vietnam et al. more vigorously. Until now, and properly, their support has been constrained by the principle that extra-regional countries do not take sides in the South China Sea disputes.
Now, however, the tribunal has ruled that China has no valid claim to the properly drawn EEZs of other nations. That means that if China should renew its harassment of Vietnam’s offshore oil facilities and exploration activity, or threaten Malaysian or Philippine offshore outposts, friendly nations have ample justification for coming to their support.