By Dr. Abdul Ruff
An international tribunal, Permanent Court of Arbitration (PCA), has ruled against Chinese claims to rights in the South China Sea, backing a case brought by the Philippine, declaring that there was no evidence that China had historically exercised exclusive control over the waters or resources.
The tribunal ruling in a sweeping decision on July 12, obviously under strenuous US pressure tactics, that China has no legal basis for claim has further aggravated the seething regional dispute with its large-scale land reclamation and construction of artificial islands that destroyed coral reefs and the natural condition of the disputed areas.
The tribunal also found that China had interfered with Philippine petroleum exploration at Reed Bank, tried to stop fishing by Philippine vessels within the country’s exclusive economic zone and failed to prevent Chinese fishermen from fishing within the Philippines’ exclusive economic zone at Mischief Reef and Second Thomas Shoal.
Ruling on a variety of disputes the Philippines asked the tribunal to settle between it and China, the five-member panel unanimously concluded that China had violated its obligations to refrain from aggravating the dispute while the settlement process was ongoing.
The Philippines, which sought the arbitration ruling, welcomed the decision, and China rejected it outright. “The Philippines strongly affirms its respect for this milestone decision as an important contribution to ongoing efforts in addressing disputes in the South China Sea,” Foreign Secretary Perfecto Yasay said in Manila. He pledged to pursue a peaceful resolution of his country’s territorial disputes with China.
The ruling is binding on both countries under a UN treaty that both have signed, but there is no policing agency or mechanism to enforce it. The tribunal said that any historic rights to resources that China may have had were wiped out if they are incompatible with exclusive economic zones established under a UN treaty.
It also criticized China for building a large artificial island on Mischief Reef, saying it caused “permanent irreparable harm” to the coral reef ecosystem and permanently destroyed evidence of the natural conditions of the feature.
China called the ruling “ill-founded” and says it will not be bound by it. China claims almost all of the South China Sea, including reefs and islands also claimed by others.
The ruling came from an arbitration tribunal under the United Nations Convention on the Law of the Sea (UNCLOS), which both countries have signed. The ruling is binding but the Permanent Court of Arbitration has no powers of enforcement. The US sent an aircraft carrier and fighter jets to the region ahead of the ruling. Meanwhile, the Chinese Navy has been carrying out exercises near the disputed Paracel islands.
Philippe Sands, a lawyer for the Philippines in the case, said it was a “clear and unanimous judgment that upholds the rule of law and the rights claimed by the Philippines”. He called it a “definitive ruling on which all states can place reliance”.
However, the China said that “as the panel has no jurisdiction, its decision is naturally null and void”. In a statement, the Chinese foreign ministry said China was the first to have discovered and exploited the South China Sea islands and relevant waters, “thus establishing territorial sovereignty and relevant rights and interests”.
The tribunal was ruling on seven of 15 points brought by the Philippines. Among the key findings were: Fishermen from the Philippines and China both had fishing rights around the disputed Scarborough Shoal area, and China had interfered by restricting access; China had “destroyed evidence of the natural condition of features in the South China Sea” that formed part of the dispute; Transient use of features above water did not constitute inhabitation – one of the key conditions for claiming land rights of 200.
There were no celebrations, hardly even a smile in Philippines.. And there’s a reason for that. This is not the same government that first brought this case to the Permanent Court of Arbitration three and a half years ago, in the aftermath of a standoff at Scarborough Shoal. Two weeks ago, Rodrigo Duterte was sworn in as Philippine president. All the indications are that he is more willing to seek accommodation with the Chinese than his predecessor, Benigno Aquino. Here in Manila, many believe that the new president may have sought promises of Chinese investment, in return for a quiet, dignified response.
As already declared, China quickly responded saying it does not accept or acknowledge the tribunal or the ruling. China has long maintained that the tribunal did not have jurisdiction over the dispute. China drafted its nine-dash line to demarcate its claims to virtually the entire South China Sea. Manila brought the case because China’s claims infringe upon its own 200-mile exclusive economic zone.
China, which boycotted the case, summoned its demobilized sailors and officers for training drills in exercises that apparently started just days ago. The People’s Liberation Army Daily newspaper said on social media that Chinese navy reserves have been called up to perform “functional tasks.” The post followed online rumors that reservists in central Chinese provinces were called up for an unspecified mission from July 10-22.
The dispute centers on waters through which an estimated $5 trillion in global trade passes through each year and are home to rich fishing stocks and a potential wealth of oil, gas and other resources. The ruling comes as the USA has ramped up its military presence in the region. However a new Philippine leader who appears friendlier to Beijing could also influence the aftermath of the ruling.
China has argued that the tribunal has no jurisdiction and says it won’t accept the ruling. It has insisted that bilateral talks between Beijing and other claimants is the only way to address the dispute. In the Philippines, interestingly, more than 100 left-wing activists marched to the Chinese Consulate in metropolitan Manila, yelling, “Philippine territory is ours, China get out.” They called their campaign to push China out of the South China Sea, “CHexit” or “China exit now.”
Vietnam, meanwhile, accused Chinese vessels of sinking a Vietnamese fishing boat in disputed waters. Nguyen Thanh Hung, a local fisheries executive in the central province of Quang Ngai, said two Chinese vessels chased and sank the Vietnamese boat around midday Saturday as it was fishing near the Paracel islands. The five fishermen were rescued by another trawler around seven hours later.
Findings of the tribunal are binding on the parties, including China. But the court — without police or military forces or a system of sanctions at its disposal — can’t enforce its ruling, so its potential impact remains unclear. World was looking forward to the Permanent Court of Arbitration in The Hague ruling on July 12 over a case between the Philippines and China over the South China Sea. The case was filed by the Philippines back in 2013 under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS), the primary treaty governing international maritime law—both countries are party to the treaty.
The ruling was expected to determine who will write the navigation rules for South China Sea, and therefore, control trade in the region, China or Philippines’s close ally, the USA. That’s why both China and the USA (with its Asia pivot program) stepped up their presence in the area ahead of the ruling.
Many experts concede it really does matter who controls South China Sea trade, considering that 60% of this commerce goes to China, the US in essence presently controls commerce to China. This means that it is very easy to rationalize what China is doing, they argue. In the 1930’s it was the USA, France, England and the Netherlands which controlled all the commerce passing through the South China Sea.
It was this control that allowed the USA to impose an economic and oil embargo on Japan. This economic aggression led to Japan’s attack on the USA. The aggression against Vietnam was part of the overall plan to keep Vietnam as a colony and in turn retain control of maritime traffic in this part of the world, i.e., China’s backyard.
The US has militarized this area from the Philippines to Korea and added a couple of carriers which in air power alone is 10x what China has done in those islets. What China is trying to do is to gain control of its own commerce or to be better able to defend against any US aggression — and this makes perfect sense. For China it is an existentialist endeavor; for the USA, it is trying to keep world hegemony
It is argued that China and its neighbors should use American power to ease rather than escalate the on-going disputes in the region. “China and its neighbors should see and use American power as backing for peaceful efforts to resolve their disputes, not as an excuse for deferring or avoiding settlement of their differences.
The issues of the South China Sea are too trivial to be allowed to spark armed conflict or trans-Pacific confrontation. The rebalancing of US global strategy toward the Indo-Pacific known as the “pivot” is welcome by Americans ad allies as “timely and appropriate”. But it should lower military tensions between the nations of the Indo-Pacific and thus between China and the USA, not lock these tensions in, still less escalate them. US diplomat Chas W. Freeman says that all disputes are solvable, if those enmeshed in them are willing to make the effort to imagine and pursue solutions to them. The parties need urgently to get on with this. And they deserve American encouragement to do so.
A debate is taking place around who is right and who is wrong and who will benefit from the tribunal ruling. If modern trade is viewed within the traditional mercantile system, where trade is a vehicle of exploration, it benefits only those who control South China Sea trade. But if the trade is viewed within the modern global system where trade is a vehicle of economic growth and prosperity for all parties involved, it doesn’t matter who controls South China Sea trade.
Therefore, China and other regional powers should consider the second option for peace and prosperity for the region, while USA which is not at all linked to the region should help promote peace and tranquility in the region without using the remaining pro-US nations in Asia Pacific against China which is a key financier of US capitalists. While USA opposes and even obstructs development of socialism anywhere in the world by misusing the international financial institutions like World Bank and IMF, China, still claiming to be a communist country, goes all the way out to subsidize US capitalism.