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China loses badly in court, but doesn’t much care.

China has suffered one of the most ignominious legal defeats ever handed out to a major power by an international court.  On 12 July 2016, the Permanent Court of Arbitration in the Hague sided with the Philippines in its complaint against China’s activities in the South China Sea. While China disputed the court’s right to adjudicate the matter and largely boycotted the proceedings, the court itself determined that the questions at issue were covered by the dispute settlement procedures of the UN Convention of the Law of the Sea.

China’s legal defeat could not have been more comprehensive:

  • China’s argument that it has “historic rights” to the maritime areas of the South China Sea encompassed by its “nine-dash line” is contrary to the Convention and without lawful effect;
  • The low-tide elevations of the various reefs and shoals China falsely claims belong to it cannot sustain human habitation or economic life on their own within the meaning of the Convention, are not features that are capable of appropriation, and therefore do not generate entitlements to a territorial sea, exclusive economic zone, or continental shelf;
  • Moreover, two of the locales — the Mischief Reef and Second Thomas Shoal — lie within the exclusive economic zone and continental shelf of the Philippines;
  • China’s operations breached the Philippines sovereign rights over the resources of its continental shelf in the area of the Reed Bank;
  • China’s moratorium on fishing in the South China Sea also breached the Philippines sovereign rights, and unlawfully prevented fishermen from many nationalities from engaging in traditional fishing;
  • China’s land reclamation and construction of artificial islands, installations and structures has caused severe and in some cases irreparable harm to local ecosystems.

A week before the ruling, China said it would not accept the findings of the Permanent Court of Arbitration and described the court as a “law-abusing tribunal” engaging in a “farce”. A former state councilor for Foreign Affairs, Dai Bingguo, described the ruling as “merely a piece of paper”. In a subsequent meeting with EU officials, Chinese leader Xi Jinping said China considered the court’s findings “illegal and invalid” and would continue to rely on bilateral negotiations to address disputes with its neighbours. To date, only Taiwan (predictably) and Pakistan have sided with China, though Beijing has already begun ramping up its diplomatic efforts to encourage smaller states in the region to resolve issues through “consultations”.

Prime Minister Abe of Japan, which is embroiled in a separate territorial dispute with China, told an Asia-Europe summit meeting in Ulan Bator that the rule of law was “a universal principle that the international community must firmly maintain” and urged “the parties to the dispute to comply with the award”. In contrast, the US State Department noted that the court’s decision was legally binding but then suggested it was not:

We encourage claimants to clarify their maritime claims in accordance with international law — as reflected in the Law of the Sea Convention — and to work together to manage and resolve their disputes. Such steps could provide the basis for further discussions aimed at narrowing the geographic scope of their maritime disputes, setting standards for behavior in disputed areas, and ultimately resolving their underlying disputes free from coercion or the use or threat of force.

 

 

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