On 12 July the Permanent Court of Arbitration (PCA), at The Hague, handed down a landmark decision in a case the Philippines had brought against China in 2013 regarding Beijing’s expansive maritime claims in the South China Sea.
Many were stunned by the comprehensive nature of the PCA’s verdict in Manila’s favour. Indeed, the decision was nothing less than a damning indictment of Chinese policy and behaviour. Andrew Erickson, professor of strategy at the US Naval War College, commented: ‘This is a remarkable victory for the Philippines. Many will be struck by the fact that the tribunal found Beijing to have violated no fewer than 14 UNCLOS provisions, six international regulations for preventing collisions at sea, and one general rule of international law.’
China all along stated it would not participate in PCA proceedings, nor abide by any decision. Instead, it launched an acerbic and pre-emptive worldwide publicity campaign attacking the legality and impartiality of the PCA. Although Beijing refused to attend hearings at The Hague, the 501-page final report revealed that China individually lobbied judges and that it used its ambassador to the Netherlands to make submissions to the PCA.
The tribunal’s findings
The Philippines raised 15 specific questions for the PCA to rule upon because the 1982 United Nations Convention on the Law of the Sea (UNCLOS) governs only maritime matters, it avoided sovereignty of features in the South China Sea.
There were a number of bombshell findings in the tribunal’s report, and five of the most important have previously been summarised by Shephard here.
China’s reaction was predictably defiant. The Chinese government released a statement claiming ‘China has territorial sovereignty and maritime rights and interests in the South China Sea’ that are ‘consistent with relevant international law and practice’. It asserted, ‘China stands ready to continue to resolve the relevant disputes peacefully through negotiation and consultation with the states directly concerned on the basis of respecting historical facts and in accordance with international law.’
Given that the Philippines had already engaged in 17 fruitless years of bilateral negotiations with China, it is difficult to anticipate significant progress under such preconditions. China could have viewed this award as an opportunity to move forward, but instead it has painted itself into a corner that severely narrows the avenues open to it going forward.
The decision to boycott the process was Beijing’s alone. The award did not touch on sovereignty in the South China Sea, so Chinese accusations that the tribunal overstepped its bounds are false. Nor did it delimit overlapping maritime boundaries. The tribunal has not snatched occupied features from China’s hands, but it has clearly defined which rocks are entitled to a 12nm territorial sea.
Beijing’s and its proxies’ continuous besmirching of an international court reflects hurt national prestige rather than adherence to a rules-based order. Indeed, its orchestrated campaign to discredit the tribunal included allegations of backhanded bias. For example, China’s vice foreign minister Liu Zhenmin cast aspersions that the Philippines had bought off the judges. ‘These judges are paid, so who’s really behind this tribunal? Who was paying them? Was it the Philippines or some other country?’ he asked.
Liu threatened that China reserves the right to establish an air defence identification zone over the South China Sea, just as it controversially did over the East China Sea in 2013. If Beijing did so, this would be an extremely inflammatory escalation.
Donald Rothwell, a professor of international law at the Australian National University, spoke to Shephard on the sidelines of the Public International Law Colloquium on Maritime Disputes Settlement in Hong Kong in mid-July. He said China has ‘some strong arguments on jurisdiction’. Yes, ‘The tribunal was hamstrung because one side only appeared,’ he admitted, although the tribunal ‘bent over backwards’ to consider China’s position.
While binding, the PCA’s verdict has no enforcement mechanism. Indeed, Rothwell said, ‘It’s quite a benign award. There’s no cease and desist, no damages.’ Given that China is a voluntary signatory to UNCLOS, its rebuttal of the decision calls into question the country’s integrity. Undoubtedly, it will amplify strategic rivalry between China and the US amid legal disagreement on the application of certain UNCLOS provisions.
Immediately after the tribunal’s decision, China sent an H-6K strategic bomber over the disputed Scarborough Shoal as a statement of intent. Since the award, China has continued to militarise its occupied features, and it has conducted multiple military drills, including one with Russia from 13-19 September. A key catalyst will be Chinese actions at Scarborough Shoal. If China attempts to build a base at this reef seized from the Philippines in 2012, it could swiftly draw American and Philippine ire.