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China’s South China Sea Claims Denied by International Tribunal

An international tribunal at The Hague delivered a unanimous decision rebuking China for its behavior in the South China Sea and denying its claims of sovereignty over areas disputed with the Philippines. “A unanimous Award has been issued today by the Tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea [UNCLOS, or the Convention] in the arbitration instituted by the Republic of the Philippines against the People’s Republic of China,” according to a release from the Permanent Court of Arbitration.

“This arbitration concerned the role of historic rights and the source of maritime entitlements in the South China Sea, the status of certain maritime features and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China that were alleged by the Philippines to violate the Convention.”

Accordingly, the Tribunal concluded that none of the Spratly Islands is capable of generating extended maritime zones. The Tribunal also held that the Spratly Islands cannot generate maritime zones collectively as a unit.

China, through a position paper published in 2014 and in statements since, has stated “it will neither accept nor participate in the arbitration unilaterally initiated by the Philippines,” and claims the international court lacks jurisdiction.

Subi Reef May 2015

Chinese vessels swarm Subi Reef, carrying out construction and dredging operations in May 2015. U.S. Navy photo

Under UNCLOS, features that extend above the surface at high tide are entitled to a 12-nautical mile territorial sea. Islands are afforded an exclusive economic zone of 200 nautical miles and a continental shelf. However, “…rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

“The Tribunal concluded that this provision depends upon the objective capacity of a feature, in its natural condition, to sustain either a stable community of people or economic activity that is not dependent on outside resources or purely extractive in nature,” the release stated. “The Tribunal noted that the current presence of official personnel on many of the features is dependent on outside support and not reflective of the capacity of the features. The Tribunal found historical evidence to be more relevant and noted that the Spratly Islands were historically used by small groups of fishermen and that several Japanese fishing and guano mining enterprises were attempted. The Tribunal concluded that such transient use does not constitute inhabitation by a stable community and that all of the historical economic activity had been extractive. Accordingly, the Tribunal concluded that none of the Spratly Islands is capable of generating extended maritime zones. The Tribunal also held that the Spratly Islands cannot generate maritime zones collectively as a unit. 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.”

In addition, the court held that through such “large-scale land reclamation and construction of artificial islands at seven features in the Spratly Islands … China 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.”

The ruling also noted that features were judged on their natural state, and China’s modification of below water reefs by dredging and adding land area did not qualify a formerly submerged reef for either a 12-nautical mile territorial sea or an EEZ.

In addition, the court held that through such “large-scale land reclamation and construction of artificial islands at seven features in the Spratly Islands … China 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.” It also found that “Chinese authorities were aware that Chinese fishermen have harvested endangered sea turtles, coral, 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.”

The ruling also rebuked China for violating 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.”

“Today’s ruling is clear, unambiguous, and reinforces the international order,” Rep. Mac Thornberry (R-TX), Chairman of the House Armed Services Committee said in response to the ruling.  The United States should act to give this ruling weight by continuing our free navigation of the seas with our allies and partners in the region, maintaining a robust and ready naval presence in the area, and demonstrating that we are a reliable ally to countries in the region.”