Viet Nam Human Rights
The PCA’s Ruling: Justice has been made!
22/7/16
On Tuesday, July 12th 2016, the Permanent Court of Arbitration (PCA)
in the Hague issued its long-waited ruling in
the South China Sea disputes between the Philippines and China. It rejected
China's claim of historic rights within the "Nine-Dash Line". It
found that none of the features claimed by China is entitled to a maritime zone
of more than 12 nautical miles. It concluded that China violated the
Philippines' sovereign rights in its exclusive economic zone (EEZ) and caused
severe harm to the marine environment. The
tribunal's findings uphold the need for a rules-based order to counter Chinese
efforts to establish a modern-day sphere of influence.
The tribunal ruled that critical aspects of China's South China Sea claims have
no basis in law, and hence are invalid. It was an unexpectedly clear judgement
against murky Chinese claims, about as dramatic and unambiguous as
international law gets. The court ruled that Chinese activities have damaged
the marine environment, particularly coral reefs. Finally, China's extensive construction of artificial "islands"
has not added additional maritime legal rights onto the features themselves,
and has illicitly aggravated and extended disputes over the contested features.
The ruling is a milestone decision in attempt of peacefully settling
the South China Sea disputes in accordance with international law. This is the
first international ruling for disputes in the South China Sea, creating basis
to settle disputes in the sea in accordance with international law,
specifically the United Nations Convention on the Law of the Sea 1982 (UNCLOS).
One
of these important contents is that ruling rejected
China's claim of historic rights within the "Nine-Dash Line" based on
the Annex VII of the Convention. In reality, China’s unilateral declaration and
aggressive enforcement of this “Nine-dash Line” have been encountered by
international denouncements.
The ruling is an important legal basis asserting justice and
international law, a joint triumph not only for Philippines but for all states
as this ruling will help to uphold the defined international legal order. The
common interpretation and application of UNCLOS help avoid conflicts from
happening. Parties must adjust their actions in complying with the UNCLOS’s
provisions.
Article 296 of
Unclos and Article 11 of Annex VII of the Convention provide that the
Tribunal's decision shall be final and binding and shall be complied with by
all parties to the dispute. This is a rule inherent in every judicial
dispute-settlement system, including Unclos. There is no exception.
China refuses to
be bound by the tribunal’s decision by by insisting that the disputes in
question were about sovereignty and not regulated by UNCLOS, or about maritime
delimitation issues it chose to exclude from the UNCLOS dispute-settlement
system.
China’s argument
here is misleading. The tribunal has already indicated that its award will not
decide those issues but will only concern itself with other important
questions, all of which involve the interpretation and application of UNCLOS
and are therefore within the tribunal’s decision-making authority.
China also cannot
claim the award is not binding because the arbitration was instituted without
its consent. Under Unclos' compulsory dispute-settlement regime, there is no
need for the parties to a dispute to give their consent for the dispute to be
referred to arbitration or adjudication. Their consent was already given in
their ratification of the Convention.
By ratifying the
Convention, which requires compulsory dispute settlement and commits all
parties to abide by whatever decision results, like it or not, the arbitration
tribunal’s decision is legally binding for China. Even China didn't participate
in the proceedings, the award still binding for it. Article 9 of Annex VII
provides that non-participation of one party would not constitute a bar to the
proceedings.
UNCLOS is widely
recognized by international community as an important mechanism in preserving
“a legal order for the sea”, so all members of the Convention have
responsibility on complying and enforcing UNCLOS’s provisions and decisions,
including settlement of related disputes.
As that, right
after the issue of the PCA ruling, many countries and international organizations
assert that the award is legally binding and help create incentives in settling
disputes in the South China Sea by peaceful measures. It is appealed that all
parties should respect and negotiate the enforcement of the ruling.
However, like many international courts and tribunals, UNCLOS does not
have an enforcement mechanism. The lack of an enforcement mechanism does not
mean decisions of international courts and tribunals are generally ignored. On
the contrary, studies have shown that the vast majority of decisions by
international courts and tribunals are implemented. As I mentioned above, given
the award addresses many important legal issues concerning disputes on the
interpretation and application of UNCLOS and clarifies several legal aspects of
the South China Sea disputes that create basis for promoting peace settlement
of disputes, the award still matters and has significant implications, even in
the absence of compliance from one party.
It’s such a pity that China has refused to recognize and
accept the PCA ruling. Failing to comply with the Arbitral Tribunal's decision
would damage China's image and reputation in the world arena. China will be
seen as a rising power with little respect for international law or "a
legal order for the sea".
Non-compliance by one party means the rights of the
other party are violated. Non-compliance also creates an obstacle for the
parties to move towards settling the underlying disputes in accordance with
international law. The South China Sea disputes are a matter of concern for
many states. If one party's action is inconsistent with the award, other states
and major powers might take measures to challenge the action. That will not be
in the interest of China, of peace, stability and security in the region. Many
have even argued that China, by denouncing the tribunal’s allegedly improper
actions, has become the true defender of international law./.
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All comments [ 10 ]
This 9-dash-line is such an extreme claim! I can understand that China wishes to restrict US naval power in the area.
Claiming you own something and owning it are two different things. China does not have an internationally recognized lien on the Spratly Islands.
The fact is China had no interest and was unable to project power to the region until recently when oil exploration discovered what may be a large oil field under the waves.
This isn't about the Spratly Islands its about the oil.
China has built up its navy and oil ocean going rigs on speculation they can seize the islands. But that still isn't a legitimate claim they just don't want to be bothered by international maritime law.
""The islands in the South China Sea have been Chinese territories since ancient times,” he said, according to state media." Even if this was true this is an absurd almost comical claim to make in the 'modern age,' especially in this age of globalization.
I am wondering why there is not any mention of Taiwan's protest against of this tribunal, by Ms Cai Yinwen's office. Ms Cai is even a pro-Japan and pro-US leader.
This sets legal precedent for all Southeast Asian countries with legitimate claims to the Paracels, Spratlys, and other islets and maritime territory in the area--i.e. not China (in either its People's Republic or Republic forms). Now Southeast Asians have a stronger foundation to work on in the judicial arena.
No one took China's ridiculous claims seriously, and it's heartening that it is now official.
Guilty, China is making serious trouble in that entire region, because is can. Building military bases on "man-made islands", is an admission of guilt. It is not so much "claiming" this "territory", but, just taking it!
Just out of curiosity- have any of you seen the " 9 dash line". It is beyond silly and should have been stopped at the first mention.
I'm surprised the Chinese did not try to get Australia.
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