The decision by the Permanent Court of Arbitration (PCA) in The Hague in favour of the Philippines in its dispute with China over land reclamation on atolls and reefs which Beijing claims in the South China Sea, has brought together all countries in the region against China’s land grab.
China’s attempts to enforce control over the air and waters of the South China Sea will now be resolutely opposed by other countries in the region, as well as by the United States.
The PCA, established more than a century ago, was the first permanent intergovernmental organisation to provide a forum for the resolution of international disputes through arbitration and other peaceful means. It operates under the auspices of the United Nations’ Convention on the Law of the Sea, and over 120 countries, including both China and the Philippines, have acceded to its conventions, and are therefore subject to its jurisdiction.
It does not deal with issues of sovereignty over land territory, nor settle disputes over territorial borders. Its jurisdiction is over the seas.
The Philippines took the case in 2012, after China – which has long claimed all the South China Sea as its territorial waters – expelled Filipino fishermen from traditional fishing grounds around Scarborough Reef, prevented Filipino oil and gas exploration, enabled Chinese fishermen to operate within the Philippines’ territorial waters, declared a maritime and air exclusion zone around disputed areas, and started land reclamation on several reefs near the Philippines coast.
China early on declared that the Permanent Court of Arbitration had no jurisdiction over the dispute because it was Chinese territory; and further, that the Philippines had previously agreed to negotiate directly with China on the issue.
China boycotted the proceedings at The Hague, but nevertheless, the court considered China’s published statements in its assessment of the dispute.
In relation to the challenge to its jurisdiction, it ruled that it was acting within its mandate. Article 288 of the convention provides that: “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.”
Accordingly, the court convened a hearing on jurisdiction and admissibility in July 2015 and concluded that it had jurisdiction to consider the parties’ dispute concerning historic rights and the source of maritime entitlements in the South China Sea.
The court concluded that the Convention on the Law of the Sea comprehensively allocates rights to maritime areas and that protections for pre-existing rights to resources were considered but not adopted in the convention. Accordingly, it concluded that, to the extent that China had historic rights to resources in the waters of the South China Sea, such rights were extinguished where exclusive economic zones were provided for in the convention.
The court also noted that although Chinese navigators and fishermen, as well as those of other nations, had historically made use of the islands in the South China Sea, there was no evidence that China had historically exercised exclusive control over the waters or their resources.
It found that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the so-called “nine-dash line”, which embraces virtually the whole South China Sea.
The court also found that China’s actions in obstructing Filipino fishermen and building islands on top of coral reefs was illegal.
It said that within the exclusive economic zone of the Philippines, China had “violated the Philippines’ sovereign rights in its exclusive economic zone by: (a) interfering with Philippine fishing and petroleum exploration; (b) constructing artificial islands; and (c) failing to prevent Chinese fishermen from fishing in the zone.”
It further found that Chinese naval vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels within the Philippines’ exclusive economic zone.
The court also concluded that China’s recent large-scale land reclamation and construction of artificial islands at seven sites “had caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened, or endangered species”.
One discordant note following the decision was Taiwan’s rejection of what it described as the court’s “completely unacceptable” decision to rule that Taiping Island, in the Spratlys, which Taiwan has occupied for many years, is a “rock” rather than an island.
Taiwan pointed out that it had not been a party to the dispute, and had not had the opportunity to make a submission to it. It urged that disputes in the South China Sea be settled peacefully through multilateral negotiations, in the spirit of setting aside differences and promoting joint development.
Peter Westmore is national president of the National Civic Council.