BEIJING — An international tribunal in The Hague delivered a sweeping rebuke on Tuesday of China’s behavior in the South China Sea, including the construction of artificial islands, and found that its expansive claim to sovereignty over the waters had no legal basis.
[Ane Perlez| July 12, 2016 | The New York Times]
The tribunal also said that Beijing had violated international law by causing “severe harm to the coral reef environment” and by failing to prevent Chinese fishermen from harvesting endangered sea turtles and other species “on a substantial scale.”
The landmark case, brought by the Philippines, was seen as an important crossroads in China’s rise as a global power. It is the first time the Chinese government has been summoned before the international justice system, and the decision against it could provide leverage to other neighboring countries that have their own disputes with Beijing in the South China Sea.
“It’s an overwhelming victory. We won on every significant point,” said the Philippines’ chief counsel in the case, Paul S. Reichler. “This is a remarkable victory for the Philippines.”
But while the decision is legally binding, there is no mechanism for enforcing it, and China, which refused to participate in the tribunal’s proceedings, reiterated on Tuesday that it would not abide by it. “The award is invalid and has no binding force,” the Foreign Ministry said in a statement. “China does not accept or recognize it.”
The foreign secretary of the Philippines, Perfecto Yasay, said Manila welcomed the decision as “significant” and called on “all those concerned to exercise restraint and sobriety.”
Many in the region have been concerned that China would react by accelerating efforts to assert control over the South China Sea, which includes vital trade routes and fishing waters as well as potential oil and mineral deposits.
The Philippines filed its case in 2013, after China seized a reef over which both countries claim sovereignty. There has been speculation that Beijing might respond to the decision by building an artificial island at the reef, Scarborough Shoal, a move that could set off a conflict with the Philippines and its treaty ally, the United States.
The key issue before the panel was the legality of China’s claim to waters within a “nine dash line” that appears on official Chinese maps and encircles as much as 90 percent of the South China Sea, an area the size of Mexico. Beijing cites historical evidence to support the claim.
But the tribunal sided with the Philippines, which had asked the judges to find the nine-dash claim to be in violation of the United Nations Convention on the Law of the Sea. The treaty details rules for drawing zones of control over the world’s oceans based on distances to coastlines.
The tribunal said that while China and other countries have used the islands in the sea in the past, Beijing had never exercised exclusive authority over the waters. Thus there was “no legal basis for China to claim historic rights to resources” in the waters within the nine-dash line.
The panel also concluded that several disputed rocks and reefs in the South China Sea were too small for China to use to claim the waters around them. As a result, it found, China was engaged in unlawful behavior inside Philippine waters, including activities that had aggravated the dispute.
The tribunal cited interference with fishing and oil exploration, “irreparable” damage to the environment and the construction of a large artificial island in Philippine waters. China has built a military airstrip, naval berths and sports fields on the island, known as Mischief Reef, but the panel said that it was in Philippine waters.
The rejection of the nine-dash line could encourage other countries to file complaints against China and strengthen their negotiating position in any talks with Beijing. Brunei, Indonesia, Malaysia, Taiwan and Vietnam all claim portions of the South China Sea inside the line.
The five judges and legal experts ruled unanimously, and the decision was so lopsided in favor of the Philippines that there were fears in Washington about how angrily the Chinese leadership would react. Some experts on China cautioned that a modest reaction from the United States would be wise.
“Xi Jinping cannot be humiliated over this,” said Bonnie S. Glaser, a senior adviser for Asia at the Center for Strategic and International Studies in Washington, referring to the Chinese president. “Xi Jinping has lost face here, and it will be difficult for China to do nothing.
“I expect a very tough reaction from China since it has lost on almost every point. There is virtually nothing that it has won.”
China had boycotted the tribunal, saying that it had no jurisdiction in the case. Because the sovereignty of reefs and islands in the sea is disputed, Beijing asserted, the tribunal could not decide on competing claims to the surrounding waters. The treaty covers only maritime disputes, not land disputes.
In a tough speech in Washington last week, a former senior Chinese official, Dai Bingguo, said that the findings would amount to no more than “waste paper” and that China would not back down from its activities in the South China Sea even in the face of a fleet of American aircraft carriers.
The issue has powerful ramifications for China’s domestic politics, as an integral part of the ruling Communist Party’s narrative is that after long periods of humiliation at the hands of bigger powers, China has regained its former greatness.
The party contends that the disputed areas in the waterway have been China’s since ancient times, and any test of the credibility of that narrative is seen in Beijing as a challenge to party rule.
Some commentators in China have said in recent days that military maneuvers in the South China Sea should not be ruled out as an immediate response to the tribunal’s finding. “Whether it will be significant or large scale I cannot say,” said Shi Yinhong, a professor of international relations at Renmin University in Beijing.
China is hosting the Group of 20 summit meeting in September, a major international forum that it wants to proceed without the distraction of conflict. But Mr. Shi said he was not sure the government “has that kind of patience” to wait until after the gathering before taking some sort of action in the South China Sea.
Still, some in China have counseled moderation in recent days.
In a surprising opinion article on the India Today website over the weekend, a professor of international relations at Fudan University in Shanghai, Shen Dingli, wrote that Beijing needed to “revise its stance”and “employ a more effective approach” that maintained China’s “long-held ‘smiling’ image.”
The new president of the Philippines, Rodrigo Duterte, has signaled that he would be more accommodating toward China than his predecessor, Benigno S. Aquino III, and he was reported to have met last week with the Chinese ambassador in Manila, Zhao Jianhua.
The case before the tribunal was filed at the initiative of Mr. Aquino, whose term ended on June 30. Soon after the case was filed, China began building artificial islands in the Spratly archipelago, parts of which are also claimed by the Philippines, in a move that many saw as a demonstration of contempt for the international court system.
Mr. Yasay of the Philippines said over the weekend that it would consider talks with China over the dispute. But he said negotiations would have to be in line with the Convention on the Law of the Sea, which China and the Philippines have ratified.
Experts in international law said that negotiations could be the most positive outcome of the case.
Such analysts point to a case in 1986, in which the United States ignored the International Court of Justice in a ruling that declared the Reagan administration’s mining of the harbors of Nicaragua to be illegal. Washington had not ratified the Convention on the Law of the Sea, and it still has not.
But the unanimous ruling 30 years ago by the judges in The Hague emboldened congressional critics to cut funds for the administration’s campaign against the Sandinista government in Nicaragua, and it galvanized countries in Central America to seek a settlement of the conflict.
The tribunal decision on the Philippines case has no enforcement mechanism: There is no international maritime police force, and China will not vacate or dismantle the artificial islands it has built on top of atolls in the Spratly archipelago. That makes the legal arguments important, the analysts said.
“In a way the tribunal will not solve the South China Sea issue but will heavily influence future negotiations,” said Markus Gehring, a lecturer in law at Cambridge University. “The tribunal rulings will move the goal posts towards the Philippines and the smaller countries.”