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The Hague rules against China on East Sea

Released at: 18:08, 12/07/2016

The Hague rules against China on East Sea

Photo: Viet Tuan/Courtesy

Tribunal finds no legal basis for claims of rights to resources in the sea.

by Ha Nguyen

An Arbitral Tribunal in The Hague concluded on July 12 that there was no legal basis for China to claim historic rights to resources within the sea areas falling within its “nine-dash line” in the East Sea (South China Sea).

“Although Chinese navigators and fishermen, as well as those of other States, 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,” the tribunal said in its 497-page ruling.

“The Tribunal concluded that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’.”

In the ruling, which fully favors the Philippines, the five-member Tribunal found that none of the features in the Spratly Islands is capable of generating extended maritime zones and that the islands as a unit are also not capable of generating maritime zones collectively.  

It also said that China had violated the Philippines’ sovereign rights in the latter’s exclusive economic zone (EEZ). ”The Tribunal found that 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.

“The Tribunal also held that fishermen from the Philippines (like those from China) had traditional fishing rights at Scarborough Shoal and that China had interfered with these rights in restricting access,” said the Hague-based tribunal.

China’s nine-dash line map of the 1940s covers nearly the entire East Sea. It protrudes from China’s southern Hainan Island, loops 1,611km away towards Indonesia, and then links back to the mainland.

China’s claims overlap those of four ASEAN states - the Philippines, Vietnam, Malaysia and Brunei - as well as Taiwan, in the potentially resource-rich East Sea. The sea is also a vital waterway through which some $5 trillion of shipping traffic passes each year.

In response to the ruling, the Philippines said those concerned must exercise sobriety and restraint. “Our experts are studying this award with the care and thoroughness that this significant arbitral outcome deserves,” Foreign Affairs Secretary Mr. Perfecto Yasay told a news conference. “We call on all those concerned to exercise restraint and sobriety. The Philippines strongly affirms its respect for this milestone decision.”

A diplomatic representative from the French Embassy in Hanoi insisted that France does not take sides on the territorial disputes concerning the East Sea, “but we hope this outcome will contribute to a peaceful resolution of disputes,” the representative said in a written response to VET on July 12.

“We cherish and support the respect of international law such as the UNCLOS in particular regarding the freedom of navigation and overflight. The procedures for settling disputes under the UNCLOS contribute to maintaining an international order based on the rule of law. We hope the parties at stake for the establishment of a Code of Conduct will reach to an early conclusion, in line with the DOC adopted in 2002,” it said.

Since China refused to take part in the case, saying it involves a determination of who owns what in the East Sea - that is, sovereignty - which falls under the purview of the International Court of Justice, some believe that regional tensions may rise in the time to come, with China perhaps establishing an Air Defense Identification Zone (ADIZ) in the East Sea.

“One option is that China declares an ADIZ over the East Sea like it did in the East China Sea in 2013,” said Mr. Murray Hiebert, Senior Adviser and Deputy Director of Southeast Asia at the Washington-based Center for Strategic & International Studies (CSIS). “Of course, we don’t know when China will do it.”

But, Mr. Hiebert noted, if China does so then militaries like those of the US, Japan, and Australia could be expected to violate the zone pretty quickly. “This could increase the chance of incidents in the air,” he said.

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