We are all in the same boat but China doesn’t want to follow the law of the sea

Both the Philippines and China are parties to the 1982 United Nations Convention on the Law of the Sea (the “Convention” or “UNCLOS”). China lost an international court case involving disputed islands in the South China Sea brought by the Philippines but refuses to accept the decision of the international tribunal applying international law. How can anyone now trust China in trade commerce or international affairs?

Even though China is much more powerful than the Philippines, China says it will refuse to obey the tribunal's decision and thus has thumbed its nose at international law. China no less than other countries who have signed up to the UN Convention on the Law of the Sea is bound by the 2016 Award (Article 296(1) of the UN Convention on Law of the Sea and The South China Sea Arbitration Award of 12 July 2016 4 Annex VII).

Philippines v. China (PCA case number 2013–19), also known as the South China Sea Arbitration, was an arbitration case brought by the Republic of the Philippines against the People's Republic of China under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS) concerning certain issues in the South China Sea including the legality of China's self-described Nine-dash line  

The Permanent Court of Arbitration Award was made on 12 July 2016

https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf

 The Philippines had no choice but to seek an arbitration from the The Hague’s Permanent Court of Arbitration in 2013, after the Chinese Coast Guard began forcing Filipino fisherman out of the lucrative fishing grounds at Scarborough Shoal juts off the coast of the Philippines in the South China Sea.

The case is instructive not only as to what the law is but moreover how willing nation states and their agents are to abide the law. 'Might does not make right'.

The Hague’s Permanent Court of Arbitration is the oldest global institutions for the settlement of international disputes. It was established by treaty in 1899 under the auspices of the First Hague Peace Conference in 1899. “The Court offers a wide range of services for the resolution of international disputes which the parties concerned have expressly agreed to submit for resolution under its auspices. Unlike the International Court of Justice, the Permanent Court of Arbitration has no sitting judges: the parties themselves select the arbitrators. Another difference is that sessions of the Permanent Court of Arbitration are held in private and are confidential. The Court also provides arbitration in disputes between international organisations and between states and international organisations.”

Arbitral Tribunal consisted of Judge Thomas A. Mensah (Presiding Arbitrator) Judge Jean-Pierre Cot Judge Stanislaw Pawlak Professor Alfred H.A. Soons Judge Rüdiger Wolfrum

Interestingly the People’s Republic of China chose to have no agents or representatives. ‘China has adhered to a position of neither accepting nor participating in the Arbitration proceedings. It has articulated this position in public statements and in many diplomatic Notes Verbales, both to the Philippines and to the Permanent Court of Arbitration. China’s Foreign Ministry has also highlighted in its statements, press briefings, and interviews that it considers non-participation in the arbitration to be its lawful right under the Convention (Annex VII Art 9 states that “[a]bsence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”.’

Nevertheless, as a matter of law, China is bound by the Award (Article 296(1) of the Convention and Article 11 of The South China Sea Arbitration Award of 12 July 2016 4 Annex VII.

The Republic of the Philippines agent was the Solicitor General of the Philippines and the following counsel/advocates:

Mr. Paul S. Reichler Mr. Lawrence H. Martin Mr. Andrew B. Loewenstein Foley Hoag LLP, Washington and Boston Professor Bernard H. Oxman University of Miami School of Law, Miami Professor Philippe Sands QC Matrix Chambers, London Professor Alan Boyle Essex Court Chambers, London.

The arbitration concerned disputes between the Parties regarding:

·        the legal basis of maritime rights and entitlements in the South China Sea,

·        the status of certain geographic features in the South China Sea, and

·        the lawfulness of certain actions taken by China in the South China Sea.’

The basis of the arbitration is the 1982 United Nations Convention on the Law of the Sea (the “Convention” or “UNCLOS”).

Both the Philippines and China are parties to the Convention, the Philippines having ratified it on 8 May 1984, and China on 7 June 1996. Part XV of UNCLOS provides for compulsory arbitration of matters such as set out in the Philippines claim lodged in 2013.

The Award stated that;

·        China has no legal basis to claim alleged ‘historic rights’ to the waters within its so called ‘nine-dash line’ (that encompassed 90% of the 3.5 million square kilometres of sea called the South China Sea which is a crucial shipping lane, a rich fishing ground, home to a highly biodiverse coral reef ecosystem, and believed to hold substantial oil and gas resources,

·        China’s attempts to occupy the disputed islands in the South China Sea including the remote Spratly Islands and construct man made land, and military installations and coast guard activities on them were illegal (breaching amongst other laws, Art 94 of the Convention) and violated together with other activities, the Philippines rights in its exclusive 200 nautical mile economic zone. This is because the Law of the Sea Convention provides that submerged banks and low-tide elevations are incapable on their own of generating any entitlements to maritime areas and that “ rocks which cannot sustain human habitation or economic life of their own” do not generate an entitlement to an exclusive economic zone of 200 nautical miles or to a continental shelf. Specifically, the high tide features in the Spratly Islands in their natural condition are NOT capable of sustaining human habitation or economic life and do NOT generate entitlements to exclusive economic zones or a continental shelf.

The Tribunal however also said that because the Convention does not address the sovereignty of States over land territory the Tribunal does not purport to, make any ruling as to which State enjoys sovereignty over any land territory in the South China Sea, in particular with respect to the disputes concerning sovereignty over the Spratly Islands or Scarborough Shoal. None of the Tribunal’s decisions in this Award are dependent on a finding of sovereignty, nor should anything in this Award be understood to imply a view with respect to questions of land sovereignty. The Tribunal has not been asked to, and does not purport to, delimit any maritime boundary between the Parties or involving any other State bordering on the South China Sea.

Nonetheless, the Tribunal found that China has in the course of these proceedings aggravated and extended the disputes between the Parties through its dredging, artificial island-building, and construction activities. In particular, while these proceedings were ongoing:

(a)          China has aggravated the Parties’ dispute concerning their respective rights and entitlements in the area of Mischief Reef by building a large artificial island on a low-tide elevation located in the exclusive economic zone of the Philippines.

(b)         China has aggravated the Parties’ dispute concerning the protection and preservation of the marine environment at Mischief Reef by inflicting permanent, irreparable harm to the coral reef habitat of that feature.

(c)          China has extended the Parties’ dispute concerning the protection and preservation of the marine environment by commencing large-scale island-building and construction works at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef.

(d)         China has aggravated the Parties’ dispute concerning the status of maritime features in the Spratly Islands and their capacity to generate entitlements to maritime zones by permanently destroying evidence of the natural condition of Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef.”

Accordingly, China has breached its international law obligations pursuant to Articles 279, 296, and 300 of the Convention.

Notwithstanding that China is bound as a matter of law by the Tribunal’s decision, China defiantly says to the international community it does not accept it.

All international trading partners of China must therefore question the Chinese government and Chinese companies’ commitment to act lawfully and abide international trading contracts as they are as much 'the law' as international law. China seems to want to pick and chose what laws it will follow when it suits them or is by reason of its power, somehow above the law of civilised nations. After China’s refusal to abide international law, international companies trading with China have to ask themselves, is a contract with a Chinese entity worth the paper it is written on?

This said, the United States cannot use this decision in any dispute with China as the US (incredibly as it seems) has chosen to not sign a treaty to be bound as a party to the Law of the Sea Convention (and should if it seeks to rely on International Law in its protestations about China’s activities in the shipping lanes of the South China Sea).

In January 2019, the Australian Defence Minister Hon Christopher Pyne gave a very thoughtful Keynote Address for the 2019 Fullerton Forum. He said Australia is to step up engagement with countries in the Indo-Pacific in order to protect the global rules-based order.

Here is a transcript of the Minister's speech.

See the Unanimous Tribunal decision:

https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf

Here’s a summary/Press release from the tribunal:

https://pcacases.com/web/sendAttach/1801

If we want a stable world order to trade and fish and exploit resources fairly, all countries must abide the rules of international law. Just because you are big and powerful does not put you above the law. Indeed breaching the law and brinkmanship can only lead to instability and possibly armed conflict as it did in the twentieth century.

This is not in China's best interest. They should reconsider their unreasonable position and abide international law. We are all in the same boat.

Indonesia supports the 2016 ruling by the Permanent Court of Arbitration in The Hague, when the court sided with the Philippines in a case that Manila brought against China over a territorial dispute in the sea. Just like the Court, Indonesia rejects China's so called "Nine-Dash line map" implying historic rights claim saying that fantasy clearly lacks international legal basis and is tantamount to upset UNCLOS 1982. ndonesia hereby declares that it is not bound by any claims made in contravention to international law, including UNCLOS 1982. It has written a letter to the UN Secretary General in January 2920 to that effect. https://www.benarnews.org/english/news/indonesian/unclos-letter-05282020172147.html

Here is Indonesia's Letter.

"On June 1, 2020, Ambassador Kelly Craft, the United States’ representative to the United Nations, sent a letter to the secretary-general of the United Nations regarding Note Verbale No. CML/14/2019. Issued by the Permanent Mission of the People’s Republic of China on December 12, 2019, the Note Verbale was a response to Malaysia’s same-day submission of its extended continental shelf (beyond 200 nautical miles) to the Commission on the Limits of the Continental Shelf (CLCS).

By this act, the United States, a non-claimant country that is further away from the immediate South China Sea region, has involved itself in the legal battle of diplomatic note exchanges between China and Malaysia, the Philippines, Vietnam and Indonesia, dating back to December 2019....Those questions aside, the latest UN communication reiterates American objections to China’s maritime claims in the South China Sea (SCS). Craft’s letter takes a firmer stance than the U.S. Note Verbale from December 28, 2016" https://thediplomat.com/2020/06/south-china-sea-us-joins-the-battle-of-diplomatic-notes/