Chinese claims shot down in flames

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Is anyone sick of China’s global propaganda campaign to annul the work of the Permanent Court of Arbitration (PCA)?

I am, for one.

One expert after another has been rolled out decrying the 2013 case the Philippines brought against China regarding maritime claims in the South China Sea as unfair. Beijing threw around words like ‘farce’, and for months prior to the ruling it was calling the decision ‘illegal, null and void from the outset’.

Finally, on 12 July, the court in The Hague handed down its landmark decision. And what a verdict it was – a damning indictment of Chinese policy and behaviour.

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It was a total slap in the face and smack on the bum for China. Andrew Erickson, professor of strategy at the US Naval War College, commented, ‘This is a remarkable victory for the Philippines.’

Many were stunned by the comprehensive nature of the verdict in Manila’s favour. The international tribunal found Beijing had violated 14 provisions of the United Nations Convention on the Law of the Sea (UNCLOS), six international collision-at-sea regulations and one general rule of international law.

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China all along stated it would not participate in PCA proceedings, nor accept or abide by any decision. It was well within its rights to do so. However, its petulant accusation that the PCA had no validity over the case was clearly wrong. Julian Ku, the Maurice A. Deane distinguished professor of constitutional law at the Hofstra University School of Law, noted, ‘Because the tribunal has exercised its powers under Article 288(4) to determine that it has jurisdiction over the dispute, then China is bound whether or not it has consented to this particular arbitration.’

Despite insisting it would not participate in proceedings, the 501-page PCA report revealed that China individually lobbied judges and used the Chinese ambassador in the Netherlands to make regular submissions to the PCA. China refused the opportunity to present its case, instead preferring backdoor avenues. Contradictory?

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So what did the court decide?

  1. The first bombshell was that China’s strategically vague nine-dash line is illegal and does not carry ‘historic rights’. It concluded, the ‘nine-dash line’ is contrary to UNCLOS and has no lawful effect. That must sting China and its oft-repeated mantra of historical rights.
  2. The PCA ruled that no geographic features in the South China Sea – of any nation – can be classified as islands. Thus, none is entitled to any exclusive economic zone (EEZ) or continental shelf individually or collectively, although rocks do generate 12nm territorial waters.
  3. The judges decreed that China interfered in the EEZ of the Philippines in terms of fishing rights, petroleum exploration, constructing artificial islands and dangerous conduct by Chinese law enforcement vessels.
  4. The PCA severely criticised China for ‘irreparable’ harm inflicted on the marine environment due to large-scale reef reclamation activities.
  5. Finally, the court adjudged that China aggravated the dispute with its island reclamation and facility construction. Furthermore, building these reefs up does not convey any maritime legal rights after the fact.

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The Chinese reaction was predictably defiant. On its Weibo account, The People’s Daily carried the slogan: ‘Don’t accept, don’t participate, don’t recognise, don’t carry out.’ Some online nationalists even called for war before Chinese censors deleted posts in an effort to tone down the rhetoric!

The Chinese government released a statement asserting ‘China has territorial sovereignty and maritime rights and interests in the South China Sea’ that are ‘consistent with relevant international law and practice’. Hmm…such a conclusion is in sharp contradiction to the PCA’s findings.

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This ruling, while binding, has no enforcement mechanism. With China rebutting the decision, it is inconceivable that Beijing will desist from its claims. However, given that China is a voluntary signatory to UNCLOS, to ignore the findings calls into question the country’s integrity.

The ruling does nothing to ease tensions. Indeed, the ball is very much in China’s court to see how it will respond. Probably most neighbours and the US will tread carefully not to inflame an otherwise tense situation. What the verdict has done, however, is provide a legal context for neighbours and the world to view Chinese claims and actions.

Importantly, China has lost face in the overwhelming criticisms it received in this case, and in Asia face matters an awful lot. Unfortunately, belittling the validity of the PCA can in no way save face for China in the court of world opinion either.

China already smarts deeply from its so-called century of national humiliation (1839-1949) – will this episode push it over the edge?

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