Why a tribunal has ruled against China on the South China Sea

By J.P.

THE ruling of July 12th on the South China Sea by the Permanent Court of Arbitration, an international tribunal in the Hague, raises tensions in one of the tensest areas of the world and is the biggest setback so far to China’s challenge to American influence in East Asia. The court’s rulings go further than expected in saying China is violating international law in the South China Sea.

The case was brought by the Philippines in 2013, after China had grabbed control of a reef, called Scarborough Shoal, about 220 miles north-west of Manila. The Philippines, which has a defence treaty with America, asked the court to declare that “historic rights” claimed by China in the region were only valid if they accorded with the UN Convention on the Law of the Sea (UNCLOS). It also asked the court to rule on several other actions by China, such as large-scale constructions on reefs. The South China Sea has a number of overlapping maritime claims by coastline nations, with, superimposed on those, a claim by China of historic rights within a “nine-dash line” which reaches almost down to Borneo and encompasses most of the South China Sea.

The court agreed with the Philippines. The line has no standing in international law. “There was no legal basis for China to claim historic rights to resources within the sea areas falling within the nine dash line,” the judges wrote. And UNCLOS takes precedence over historic rights. “To the extent China had historic rights to resources in the waters of the South China Sea,” the judges wrote, “such rights were extinguished to the extent they were incompatible with [UNCLOS]”. Adding insult to injury, the court found China had infringed Philippine sovereign rights inside that country's 200-mile exclusive economic zone, unlawfully disrupted Philippine fishing activities around Scarborough Shoal, had risked collisions with Philippine vessels in the same area and had violated its obligations under UNCLOS to look after fragile ecosystems (damaging threatened coral reefs, for example).

China refused to take any part in the proceedings and said that it would not “accept, recognise or execute” the verdict. But the sweeping condemnation of its activities by the court could raise tensions in the South China Sea further, embolden other countries to launch copy-cat court actions, and possibly lead China to react strongly. Before the ruling, there had been talk that it might set up an Air Defence Identification Zone over all or part of the South China Sea, requiring all aircraft to identify their location. John Kerry, America’s secretary of state, called such an idea “provocative and destabilising”. Chinese scholars have talked about pulling out of UNCLOS, though that is unlikely, and of restarting construction works in Scarborough Shoal, which is something of a red line for the United States. On the other hand, the new president of the Philippines, Rodrigo Duterte, has said he wants better relations with China. That must be the main hope: that the court’s rulings usher a period of negotiations, rather than hostilities.