Beijing May Ignore the South Sea Ruling—But We Must Not
International law has a way of accommodating realities of power—of deferring to the strong. Kudos go to the jurists, consequently, for speaking truth to power—for upholding the plain meaning of the UN Convention on the Law of the Sea (UNCLOS) rather than softening their findings or declining to rule on the most contentious matters in hopes of fostering amity with China. John F. Kennedy would award them a profile in courage.
Beijing, for instance, has proclaimed repeatedly, loudly and stridently that it commands “indisputable sovereignty” within a nine-dash line enclosing some 80–90 percent of the South China Sea. That includes exclusive economic zones (EEZs) apportioned to coastal states such as the Philippines, the claimant that brought its case before the UNCLOS tribunal. Indisputable sovereignty is a sea grab.
And a land grab, even if much of the land is watery. At issue is Scarborough Shoal; the shoal is a submerged reef deep within the Philippines’ EEZ, extending two hundred nautical miles offshore and grants the coastal state exclusive rights to tap natural resources in those waters and the seafloor beneath. China’s coast guard and navy shut their Philippine counterparts out of the waters at Scarborough Shoal—that is, out of waters allocated to Manila by treaty—four years ago.
The tribunal rejected not just China’s claims to the waters adjoining Scarborough Shoal; it rejected the nine-dashed line as a whole. Beijing has claimed sovereignty—physical control upheld by a monopoly of force—within that expanse based on “historic rights”. In other words, officialdom contends that since Chinese fishermen worked those waters for centuries, they and the geographic features within belong to China.
Not so, say the UN judges. They point out that fishermen from other Southeast Asian countries plied their trade in the same waters. But even if historic rights once commanded some validity, they note, UNCLOS—to which China is a party, and to which it consented—supersedes any such claims. The Philippine exclusive economic zone, then, belongs to the Philippines.
And so it went. The UNCLOS tribunal also held that no island, atoll or reef in the Spratly Islands is entitled to an EEZ. The treaty text sets criteria for judging a feature’s legal status: if it can sustain human habitation or economic life from its innate resources, it qualifies as an island encircled by an exclusive economic zone.
The judges administered a mild shock. Commentators, including yours truly, have generally interpreted the convention’s requirements to mean that an island with its own freshwater supply qualifies as an island. The jurists demurred, pointing out that no one has ever inhabited the Spratly Islands except in transient fashion. Still less has China ever exercised exclusive control over South China Sea waters. Heck, the decision even downgraded Taiwan’s Itu Aba (Taiping) Island, the largest of the Spratly Islands and a feature boasting fresh water of its own.
The tribunal, furthermore, took Beijing to task for its island-building project. Manila maintained that Chinese engineers were unlawfully erecting artificial islands within the Philippine EEZ. UNCLOS allows coastal states to build artificial islands within their own EEZs, but not those belonging to others. The judges agreed. They also held that China had wrought “irreparable harm” to the marine environment while excavating the seafloor to expand rocks or reefs into islands capable of supporting airfields, piers and other infrastructure.
China “destroyed evidence” of these features’ natural and thus legal status to boot. That’s doubtless a feature—not a bug—in the process from Beijing’s standpoint. Tampering with evidence is no big deal for an offender willing to flout the law. In short, very little didn’t go the Philippines’ way in the proceedings. It was a win-win day for Manila, to borrow the hackneyed business jargon whereby Chinese interlocutors seem so bewitched.
Which leaves the question: what next? First of all, it’s plain that this is not over. Americans are accustomed to an orderly legal process. A court hands down its judgment, the authorities execute it, and that’s that. Not so in this case.