Why South China Sea ruling is unlawful

16th July 2016

16th July 2016

Great powers again have a design on China

(China’s rise is a first in 500 years that an alternative non-Western power has become a global power. An attempt thus to carve it up like in the past.—NEWSBRED)

By Shen Dingli

The Permanent Court of Arbitration (PCA) has made public its award of the Philippines’ case on the South China Sea. As pointed out by many observers, the PCA was willed to extend its unfounded jurisdiction over this case. Per design, the international tribunal that the PCA set up doesn’t qualify to judge the maritime rights based on sovereign nature. The case that Manila raised in The Hague in 2013 against China exactly is about various issues where sovereignty is at stake. As such, the court has willfully and erroneously expanded its turf to make this unlawful verdict.

Even worse, this tribunal has been ill intended to promote the Philippines’s unwarranted national interests. For instance, the court has ruled that the Taiping Island in Nansha Islands doesn’t really constitute as a “legally qualified island”, contradicting the simple fact that human being has been, for ages, living on the island with, largely, self-sufficiency. The argument that there is no evidence that “human community” has been formed in this place from eternal time, a precondition to qualify Taiping as an island, sounds absurd to the Chinese, on both mainland and in Taiwan. Such verdict seriously cuts the traditional Chinese fishing areas, especially for those from Taiwan, and hence initiates, rather than helps reduce, the fishery disputes in the region. People could hardly perceive such a tribunal would have any proper sense of justice and fairness.

The verdict has essentially invalidated the nine-dashed line. Such a line emerged well before the 1982 UNCLOS was promulgated, and actually registered China’s historical rights in its ocean-bound southern neighborhood before contemporary international maritime law came into being. When China joined the UNCLOS in 1980s and ratified the convention in 1990s, it retained the U-shaped line to point to such rights.

Every multilateral international agreement suits some countries but could also possibly leave some problems. The US has problems with the seabed chapter of the UNCLOS so it joined the convention without ratifying it. Despite the international effort to revise the convention in 1990s for the sake of the U.S., America hasn’t yet ratified the document. The convention also presents challenges to China – given China’s rather limited exclusive economic zone (EEZ) on a per capita basis, joining the convention as China’s support to the world while retaining its historical claims through the dashed-line became Beijing’s concrete global commitment and pragmatic approach toward the UNCLOS, which itself was a complex compromise of all parties.

On the one hand, expecting China to join the regime in full compliance with the convention would seriously cut China’s exclusive economic zone at per capita level.
On the other, pushing the envelope too far would force Beijing to re-evaluate the cost effectiveness of joining the UNCLOS. A successful international regime shall both embrace rule of law and strengthen reconciliation among various stakeholders to boost the regime rather than to tear it apart.

China has employed such an approach of participation plus consultation to both make the regime cohesive and to reconcile differences with counter-claimants. This becomes more relevant when a large number of the islands and reefs on its side of the dashed lines have been already seized by a few other claimants since 1970s. Because the overall balancing between sovereignty and economic rights of relevant claimants is so complicated, a simplistic ruling with PCA tribunal could hardly work. It is for this reason China has preferred to resolve those disputes through negotiation rather than going to the court.

However, the tribunal’s rigid ruling has achieved no balancing, as its announcement has indicated. This lies in the fact that as far as vast stake such as sovereignty is concerned, the tribunal has not been designed to settle disputes at all. Under such circumstances, any mechanical application of the convention could yield unreasonable and unlawful outcome, endangering regional relations.

Those who played the dangerous game have unnecessarily raised the temperature higher. China’s response has been firm and consistent – any unlawful APC rulings would not be accepted and has to be dismantled. Raising the tension higher is unhelpful to all parties, including those who fired it. China still welcomes relevant claimants for direct talks through a process of mutual benefit and mutual concession.

Shen Dingli, a physicist by training, is a professor of international relations at Fudan University.  He is the Deputy Dean of Fudan University’s Institute of International Studies.  He is also the founder and director of China's first non-government-based Program on Arms Control and Regional Security at Fudan University. 

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