The international Permanent Court of Arbitration today found China in violation of numerous parts of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), capping a case filed by the Philippines in 2013 over territorial disputes in the South China Sea.
The Beijing-controlled media roundly scorned the unanimous July 12 decision, and the court noted in its written opinion that China has repeatedly stated it would "neither accept nor participate in the arbitration unilaterally initiated by the Philippines."
The arbitration filed by the Philippines before the court, based in The Hague, Netherlands, concerned the role of historic rights and the source of maritime entitlements in the South China Sea. China has cited ancient maps and documents that allegedly indicate historic precedence to dominate and control an area roughly the size of India.
The Hague ruled that to the extent that China had historic rights to resources in the waters of the South China Sea, such rights were extinguished when incompatible with the exclusive economic zones (EEZ) set out in the UNCLOS text. The tribunal also noted that while navigators and fishermen from China and elsewhere had historically made use of the islands, there was no evidence that China had historically exercised exclusive control over the waters or their resources. The Hague 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 that China uses to claim the entirety of the South China Sea.
The court also examined the status of certain maritime features and their requisite maritime entitlements, and the lawfulness of certain actions by China that were alleged by the Philippines to violate UNCLOS. China has been involved in an aggressive land-reclamation effort in the South China Sea and has installed both civilian and military facilities on these sites.
The tribunal concluded that none of the Spratly Islands is capable of generating extended maritime zones due to their natural setting, including submersion during high tide. "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 court said.
The Hague also considered the lawfulness of Chinese actions particularly in areas within the EEZ of the Philippines. The court found that China had violated the Philippines' sovereign rights in its EEZ by interfering with Philippine fishing and petroleum exploration, constructing artificial islands and 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," notes the court decision. "The Tribunal further held that Chinese law-enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels."
What Now?
Sam Tangredi, a specialist on anti-access/area denial (A2/AD) strategies at the US-based consulting firm Strategic Insight, argues that China's A2/AD ambitions must be defined in terms of diplomatic and economic activities, not just military.
China could ignore the ruling and justify its activities by passing a law declaring that the South China Sea, like Taiwan, has always been an internal region of China, and therefore international legal jurisdiction does not and has never existed, Tangredi said. In that line of thinking, the independence or foreign control of the territorial seas cannot be tolerated and actions by other states to assert control are illegal and will be treated as a criminal action. Any resulting resistance or attack on Chinese agencies exercising outside legal authority would be treated as an attack against the state.
Tangredi, who wrote the recent book, "Anti-Access Warfare," said: "Authoritarian regimes are particularly sensitive to having 'legal' justifications for arbitrary actions, and that is the case with China."
The analyst also said he fears China would declare an Air Defense Identification Zone (ADIZ) over the South China Sea in response to the court ruling. China declared an ADIZ over the East China Sea (ECS) in November 2013, rattling Japan and the United States. The ECS ADIZ overlaps the Japanese-administered Senkaku Islands, which China claims as the Diaoyu Islands.
Wallace "Chip" Gregson, a retired US Marine and former US assistant secretary of defense for Asian and Pacific security affairs, said a new ADIZ in the South China Sea is a possibility, as well as other preemptive actions in Scarborough Shoal and Second Thomas Shoal.
"I believe that the most important thing for the Chinese leadership after the verdict will be to show the Chinese people that the verdict is irrelevant and that the Chinese leadership has triumphed over the foreign influences and 'the hegemon,'" Gregson said. "I think there will be, at the least, a period of high rhetoric accompanied by demonstration activity. This can take a number of different forms, from fly-bys and sail-bys in various territorial waters, including in the East China Sea."
More troublesome in many ways would be aggressive action with state-owned fishermen – increasingly armed - and maritime auxiliary ships and aircraft, Gregson said. "Fishing areas enjoyed by other nations, sanctioned by the provisions of UNCLOS, can be overwhelmed by non-military Chinese assets. We and our allies have only limited ways to counter that."
Andrew Erickson, a China military specialist at the US Naval War College, calls China's fishing boat militia "China's 3rd Sea Force" and capable of disrupting US freedom of navigation operations in the South China Sea.
"For years now, China's been surreptitiously pushing territorial claims against weaker neighbors using its maritime militia, or 'Little Blue Men,'" he said.
Incidents involving these non-military forces include:
- 2009: harassment of the US Navy survey ship Impeccable;
- 2011: sabotage of two Vietnamese hydrographic vessels;
- 2012: seizure of Scarborough Shoal from the Philippines; and
- 2014: repulsion of Vietnamese vessels from disputed waters surrounding its HYSY-981 oil rig.
Despite these events, Erickson said China's maritime militia has not been mentioned in any public US government reports or in any public statements by Washington-based US government officials. "If the US government, with all of its resources and capabilities, has not yet begun to address this challenge openly and proactively, how can it expect its Asian partners to do so?"
The US government must "call out" China's maritime militia in public and in conversations with Chinese interlocutors, Erickson argued. Washington must make it clear that any elements that ignore repeated warnings by US vessels to refrain from disruptive activities would be treated as military-controlled vessels, he added. The US government also should impose consequences for any use of the maritime militia against US vessels, according to the analyst.
