Wednesday, July 13, 2016

The PCA ruling on the China-Philippine's dispute in the South China Sea

[Three articles on the ruling on the South China Sea dispute.]

Project Syndicate

JUL 12, 2016 4

The South China Sea Is Not China’s

Gareth Evans

MELBOURNE – To no one’s surprise, the Permanent Court of Arbitration (PCA) in The Hague has upheld all the key arguments of the Philippines in its case against China on the application of the United Nations Convention on the Law of the Sea (UNCLOS) in the South China Sea. In its ruling, which employed even tougher language than most expected, the tribunal cut the legal heart out of China’s claim that the sea is, in effect, a Chinese lake.

The PCA ruled that China’s “nine-dash line,” a 1940s-era delineation that implies ownership by China of 80% of the South China Sea, is legally meaningless. It also made clear that China’s recent land-reclamation activity, turning submerged or otherwise uninhabitable reefs into artificial islands with airstrips or other facilities, confers no new rights to the surrounding waters or any authority to exclude others from sailing or flying nearby.

Official Chinese statements on the nine-dash line have never stated precisely what it is intended to encompass. Some refer to “historic rights,” others to “traditional Chinese fishing grounds,” while still others suggest that it is merely shorthand for describing all the land features in the South China Sea over which China claims sovereignty. But every variation has provoked others in the region, by signaling China’s willingness to encroach on perceived fishing rights (as with Indonesia), rights to exploit resources (as with Vietnam), or their own rights to the land-features in question

The PCA’s decision punctures any notion that international law now recognizes “traditional” or “historic” maritime claims not directly associated with recognized sovereign ownership of relevant types of land. Recognized ownership of a habitable island, as with mainland territory, includes a 12-nautical-mile territorial sea, a 200-nautical-mile exclusive economic zone or EEZ and rights over any associated continental shelf (subject to any overlapping rights of others).

Recognized ownership of an uninhabitable rock or permanently protruding reef includes the surrounding 12-nautical-mile territorial sea. Nothing more. Without land, a state cannot claim rights to the sea.

China can and will continue to claim that, despite competing claims by Vietnam, the Philippines, and others to the land features in question, it is the sovereign owner of habitable islands and permanently protruding rocks or reefs in the Spratly and Paracel Island groups and elsewhere. In making its case, it can invoke accepted legal criteria like effective occupation or acquiescence. When added to its own coastal entitlements, China might well end up with a sizeable and entirely defensible set of rights in the South China Sea.

But the PCA addressed none of these underlying sovereignty issues in the Philippines case. And, crucially, even if all of China’s sovereignty claims in the South China Sea were one day accepted – whether through negotiation, arbitration, or adjudication – the total area, including territorial sea, EEZs, and continental-shelf rights, would still not approach the size of the vast zone encompassed by the nine-dash line.

The PCA’s decision also rules out China’s claim to an unlimited right to pursue and stare down any close surveillance of its massive reclamation activity and construction of military-grade airstrips, supply platforms, communications facilities, and in some cases gun emplacements. Such construction has occurred on seven previously unoccupied locations in the Spratlys: Mischief Reef, Subi Reef, Gaven Reef, and Hughes Reef (all previously submerged at high tide), and Johnson South Reef, Cuarteron Reef, and Fiery Cross Reef (all previously part-exposed at high tide, but uninhabitable).

Under UNCLOS, states may construct artificial islands and installations within their own EEZs, and also on the high seas (but only for peaceful purposes). In neither case can this have the legal effect of turning a previously submerged reef into a “rock” (which might allow a 12-mile territorial sea to be claimed), or an uninhabitable rock into an “island” (which might allow for a 200-mile EEZ as well). The Philippines case confirmed these basic principles.

In doing so, the PCA also made clear that China had no right whatsoever – at least in the case of the previously submerged Mischief Reef – to engage in any construction activity, as the territory it claims is within the Philippines’ EEZ.

China seems unlikely to abandon occupancy of any island, reef, or rock where it currently has a toehold, or to stop insisting on its sovereign ownership of most of the South China Sea’s land features. But everyone with an interest in ensuring regional stability should encourage China to take several steps that would not cause it to lose face.

These steps include a halt to overtly military construction on its seven new artificial islands in the Spratlys; not starting any new reclamation activity on contested features like the Scarborough Shoal; ceasing to refer to the “nine-dash line” as anything other than a rough guide to the land features over which it continues to claim sovereignty; submitting these claims at least to genuine give-and-take negotiation, and preferably to arbitration or adjudication; advancing negotiations with ASEAN on a code of conduct for all parties in the South China Sea; and an end to dividing and destabilizing ASEAN by putting pressure on its weakest links, Cambodia and Laos, on this issue.

The alternative course, already being promoted by hotheads in the People’s Liberation Army, is to take a dramatically harder line by, say, renouncing UNCLOS altogether and declaring an Air Defense Identification Zone (ADIZ) over most of the South China Sea. Declaring an ADIZ, which the United States would certainly ignore, would sharply increase the likelihood of military incidents, with wholly unforeseeable consequences.

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Walking away from UNCLOS would also be wrongheaded. China would still be effectively bound by its terms, now almost universally recognized as customary international law, irrespective of who adheres to it. The gesture of defiance would damage both its reputation and other territorial interests, not least its claims against Japan in the East China Sea, which rely on UNCLOS’s continental-shelf provisions.

If China takes a hardline path, or fails to moderate its behavior significantly in the months ahead, the case for further international pushback by countries like mine – including freedom-of-navigation voyages within 12 nautical miles of Mischief Reef and other artificial islands in that category – will become compelling. But right now it is in everyone’s interest to give China some space to adjust course and to reduce, rather than escalate, regional tensions.

Gareth Evans, former Foreign Minister of Australia (1988-1996) and President of the International Crisis Group (2000-2009), is currently Chancellor of the Australian National University. He co-chairs the New York-based Global Center for the Responsibility to Protect and the Canberra-based Center for Nuclear Non-Proliferation and Disarmament. He is the author of The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All and co-author of Nuclear Weapons: The State of Play 2015.


[Meanwhile, the Straits Times went with this headline:]
South China Sea dispute: Experts call for cool heads after surprise ruling
[Who exactly was "surprised" by this ruling? His "expertise" on this needs to be questioned.]

July 13, 2016

Regional analysts urge Asean to play role of peacemaker
Charissa Yong

The finding of an international arbitral tribunal, which ruled that China's claims in the South China Sea are illegal, is a massive blow to the country's national confidence and pride, said Asean Studies Centre research fellow Termsak Chalermpalanupap.

But there is no need for other countries to rub salt into the wound, said Dr Termsak, who was with the Asean Secretariat in Jakarta from 1993 to 2012, and last served as its director of political and security cooperation.

He found the tribunal's decision a "surprise" and noted that it ruled against China on practically every substantive issue under consideration. "But the Chinese government has itself to blame for boycotting... the arbitration," he said.

[So exactly ONE "expert" found the decision surprising.]

Senior fellow William Choong of the International Institute for Strategic Studies believes the key to reducing tensions is to "give China a ladder to climb down from".

"If they get humiliated publicly, which is happening now, and you rub salt in the wound by conducting military drills, you'll get a fierce reaction," said Dr Choong, who was among several regional experts interviewed yesterday.

Professor of international law and former diplomat Walter Woon said China has to show it is a responsible player if it wants to be respected.

"It risks being characterised as an international bully set on getting its own way and unwilling to abide by the rule of law," said Professor Woon, who is dean of the Singapore Institute of Legal Education.

China's strident nationalism is creating fear and suspicion among its neighbours, he said, adding: "There will be a steep price to be paid for all this in terms of loss of soft power."

Dr Choong reckons China is unlikely to back down.

"Yes, China has lost out in terms of its international reputation. But in terms of assets on the ground, China still rules the roost," he said, citing the runways that China has on the Spratly Islands, on which heavy transport can land.

Mr Tim Johnston, the International Crisis Group's Asia programme director, said it was hard to tell if China would react aggressively.

"We've had mixed signals from China," he said, comparing its sinking of Vietnamese fishing vessels to its military drills in the South China Sea last week which, he said, could have been "much more aggressive".

To help calm the waters, the experts urged Asean to step up and play the role of peacemaker.

Asean could make room for the Philippines and China to start a dialogue to find new ways of managing their differences in the South China Sea, said Dr Termsak.

Pointing to Asean's population of 633 million and gross domestic product of US$2.5 trillion (S$3.4 trillion), Mr Johnston said: "It's a mini superpower in its own right. It'd be a powerful player if it could get its act together."

But one thing could stand in the way of Asean playing a constructive role: nationalism.
"As the regional economy slows down, nationalism is going to rise and that's going to make it tougher for governments in the region to be flexible... and for any negotiations going forward," said Mr Johnston.

Prof Woon thinks Asean would be sucked into the maelstrom should China decide to pressure members to take sides. In that situation, he said, "Singapore as a small country committed to the rule of law will take a principled stand, which would be to support the result of international arbitration".

But this would complicate Singapore's relations with China, he acknowledged.

Arguing for cooler heads to prevail, Mr Johnston said: "Asean has historically been less than the sum of its parts, but this is its test."

He added: "If handled well, this could be the start of something."

South China Sea ruling: Verdict means precious little if parties don't respect it, actors don't enforce it

July 13 2016

The tribunal ruling clarifies issues relating to claims, but next steps for China, the Philippines, Asean, and the US, need to be calibrated

Prashanth Parameswaran 
For The Straits Times

On July 12, the arbitral tribunal adjudicating the Philippines' South China Sea case against China ruled overwhelmingly in favour of Manila, determining that the extent of several major elements of Beijing's claim and its efforts to enforce it were unlawful. Though the verdict goes a long way in clarifying aspects of the South China Sea dispute, its implications are less clear.

By any measure, the tribunal's ruling overwhelmingly - though not fully - favoured the Philippines on several counts.

First, it found that China's claims to historic rights with its nine-dash line had no basis in international law.

Second, it sided with the Philippines on most of the features in the Spratlys that China claims, finding that these were rocks rather than islands and that they were thus only entitled to 12 nautical miles (nm) of territorial seas, not the 200 nm of exclusive economic zones (EEZs) or continental shelves of islands. This effectively limits Beijing's expansive claims to just the disputed features and the territorial seas they generate.

Third, it found that Beijing had violated its obligations under the United Nations Convention on the Law of the Sea (UNCLOS) by causing widespread environmental destruction through its construction of artificial islands and infringing on Philippine sovereign rights by interfering with fishing and petroleum exploration.

While this does go a long way in clarifying some contentious issues related to the South China Sea, the implications of the ruling are less clear.

China and the Philippines are most directly affected as they are the only two countries legally bound by the tribunal's ruling. For Beijing, though it has already dismissed the ruling, it has a range of options of how it will act in the face of a sweeping rebuke of its position. China could take assertive steps to make its stance clear, including increasing its naval and/or coast guard presence in disputed areas or deploying advanced military assets to the Spratly Islands.

But there are also incentives for Beijing to exercise restraint even if it refuses to accept the ruling, including exploring negotiations with the new Philippine government and minimising tensions abroad ahead of the G-20 Summit it is hosting in early September. Given this, the calibration of China's moves for the remainder of 2016 will be interesting to watch.

South China Sea: After the Hague ruling, what's next?

How the Philippines reacts is equally unclear. Though Manila filed the case against China in 2013 under then-President Benigno Aquino III, his newly inaugurated successor Rodrigo Duterte has initially signalled a more conciliatory approach towards Beijing. How that plays out following the verdict though remains to be seen. On the one hand, the clarity that the ruling offers, combined with Manila's choice not to "taunt or flaunt" its victory as Mr Duterte put it, may pave the way for both sides to enter into negotiations or even set aside disputes and focus more on economic cooperation in other areas. But on the other hand, the ruling on specific features also sets certain parameters and limits the extent to which the Duterte administration can pursue efforts like joint development with China in the South China Sea.

The ruling also affects other parties beyond just China and the Philippines. Its findings - such as the clarity on definitions of islands and rocks or the illegality of the nine-dash line - have implications for other South China Sea claimants.

On the former, for instance, the tribunal's ruling on the status of Itu Aba, the largest feature in the Spratlys, as a rock rather than an island, has already drawn a strong denunciation from Taiwan.

On the later, other coastal states in the South China Sea like Malaysia and Indonesia, which have publicly protested China's nine-dash line and intrusions into their waters, now also have clearer legal backing for their grievances. What they choose to do with that clarity, though, runs the gamut. Some may respond more boldly to Chinese encroachments, while others could still be hesitant to raise the stakes with Beijing. A few may even follow in Manila's footsteps and take Beijing to court.

Beyond the countries with direct claims in the South China Sea, the ruling also has implications for the region and the world more generally. Some Asian countries as well as other concerned actors have made clear their interest in seeing any disputes along this strategic waterway - and the region more generally - resolved peacefully and lawfully rather than through the use of force, and ensuring that basic principles like the freedom of navigation and overflight are protected. Though the verdict has been widely hailed as a victory for these principles, those same countries that extolled the value of the so-called rules-based international order now need to convince China to abide by it or at least find some kind of face-saving way out while also preserving their broader relationships with Beijing. That is a delicate balance which different states will want to walk differently.

How this shapes out, then, is far from certain. In addition to the unilateral post-verdict statements we have seen coming out of various capitals, we are likely to see a broader diplomatic campaign by some states in bilateral meetings as well as regional and international fora in support of the verdict, with a few laggards attempting to resist.

An early test of this will come at the next round of Asean summitry to take place in Laos later this month. Following the disarray at the Asean-China Special Foreign Ministers' Meeting in Kunming last month, all eyes will be on whether regional grouping can at least adopt a joint communique with basic language in support of the principles that undergird the verdict.

More broadly, the key for Asean for the rest of 2016, which is also the 25th anniversary of the establishment of its dialogue partnership with China, is to balance managing the South China Sea issue with making progress with Beijing on a number of other important issues. The role of Singapore, which is this year's Asean-China country coordinator, will be critical in this effort.

Diplomacy will likely need to be backed up by actions, whether they be regular demonstrations of presence by capable actors or efforts to counter potentially aggressive moves by China.

Given the limited military capabilities of most South-east Asian states relative to Beijing, the burden will probably fall once again on the United States and its allies and partners like Japan, ideally working with claimant states as well.

In addition to regular patrols, routine military exercises and periodic freedom of navigation operations, Washington may also consider other deployments and even capability upgrades for specific actors.

And even though the outgoing Obama administration may prefer a scenario where tensions are low so it can focus more on seizing opportunities in the Asia-Pacific and cementing its legacy during its remaining six months, aggressive Chinese actions may force Washington to take even stronger measures. If China chooses to do what the United States has already warned it not to do - like starting reclamation at Scarborough Shoal or moving towards declaring an air defense identification zone (ADIZ) in the South China Sea - Washington will have to react.

If tensions ratchet up, regional states will have to determine for themselves to what extent they want to be involved in such efforts. After all, for all the talk about the importance of the verdict itself, it means precious little if the parties do not respect it and actors do not enforce it.

Prashanth Parameswaran is associate editor at The Diplomat magazine based in Washington, DC and a PhD candidate at the Fletcher School of Law and Diplomacy at Tufts University focused on South-east Asia, Asian security affairs, and US foreign policy in the Asia-Pacific.

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