Tuesday, July 12, 2016

China ignored rules, neighbors and ecosystem: Hague tribunal has dismissed China’s nine-dash line claim

The Netherlands-based Permanent Court of Arbitration (PCA) has issued a ruling in favor of the Philippines, rebuking China’s massive claim over the South China Sea.

In a historic ruling issued after several months of arguments and submissions of documents, the five-man arbitral tribunal has dismissed China’s nine-dash line claim saying it is contrary to the United Nations Convention on the Law of the Sea (UNCLOS).

“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. Having found that none of the features claimed by China was capable of generating an exclusive economic zone, the Tribunal found that it could—without delimiting a boundary—declare that certain sea areas are within the exclusive economic zone of the Philippines, because those areas are not overlapped by any possible entitlement of China.”

The Philippines took China to the arbitral tribunal on January 2013 challenging the legality of its nine-dash line claim over nearly the entire South China Sea including areas in the country’s 200-mile exclusive economic zone.

But the Tribunal said there was no evidence that China had historically exercised exclusive control over such waters or its resources.

“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,” the Tribunal’s ruling stated.

China had refused to participate in the proceedings. It insisted that the dispute was about sovereignty and therefore beyond its jurisdiction.

But the Tribunal last year rejected China’s claim saying the case involved interpretation and application of the Convention.

The Tribunal’s ruling also branded as unlawful China’s action of shooing away Filipino fishermen from the Scarborough Shoal because the Shoal, along with Gaven Reef, McKennan Reef, Johnson Reef, Cuarteron Reef and Fiery Cross Reef are rocks that generate no entitlements to an exclusive economic zone.

China also violated the sovereign rights of the Philippines by constructing artificial islands and interfering with Manila’s fishing and petroleum exploration activities in areas that are within the Philippines’ 200-mile exclusive economic zone.

“Having found that certain areas are within the exclusive economic zone of the Philippines, the Tribunal found that China had violated the Philippines’ sovereign rights in its exclusive economic zone by interfering with Philippine fishing and petroleum exploration, constructing artificial islands and failing to prevent Chinese fishermen from fishing in the zone,” the tribunal said adding that “Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.”

China’s large-scale reclamation and construction of artificial islands had “caused severe harm to the coral reef environment and violated its obligation to preserve and protect the fragile ecosystem and the habitat of depleted, threatened or endangered species.”

“The Tribunal also found that Chinese authorities were aware that Chinese fishermen have harvested endangered sea turtles, corals and giant clams on a substantial scale in the South China Sea using methods that inflict severe damage on the coral reef environment and had not fulfilled their obligations to stop such activities,” it added.

Timeframe on maritime entitlement

Philippine Supreme Court Associate Justice Francis Jardeleza said the Philippine’s maritime entitlement will take time especially with uncertainty on whether China will respect the decision or not.

“With this award, issued by a distinguished panel of impartial legal experts, the rights and obligations of the parties under United Nations Convention on the Laws of the Seas (UNCLOS) are now clarified,” Jardeleza said at a press conference.

Jardeleza was part of the Philippine delegation that argued before the Arbitral Tribunal.

“It has been the consistent view of the legal team that this award will be a potent legal platform as our country moves forward to political and diplomatic phase of our goal of effectively asserting our maritime entitlements under UNCLOS,” he said.

Faith in the rule of law

Philippine Supreme Court’s Senior Associate Justice Antonio Carpio, part of the delegation in the Hague and considered an expert in this territorial dispute, said the Tribunal’s ruling has restored people’s faith in the rule of law in peacefully resolving disputes between States and in rejecting the use or threat of force in resolving them.

“The ruling also re-affirms UNCLOS as the Constitution for the oceans of our planet,” he said.

UNCLOS is a treaty ratified by 167 States, including China and the Philippines.

“The ruling applies the fundamental law of the sea principle that “land dominates the sea,” that is, any claim to maritime zones must emanate from land and can extend only to the limits prescribed under UNCLOS.  No state can claim almost an entire sea contrary to this fundamental principle and maritime limits.”

He added that the ruling also re-affirms the wisdom of the Philippine Constitution in renouncing war as an instrument of national policy, and in adopting international law as part of the laws of Philippines.

“The ruling manifests the faithful compliance by the Philippine Government to the Philippine Constitution, which mandates that the “State shall protect the nation’s marine wealth in its exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.” By Lorenz Niel Santos



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