South China Sea: Vietnam benefits from PCA ruling but China is not without options


July 14, 2016

South China Sea:  Vietnam benfits from PCA ruling but China is not without options

by Zachary Abuza

On  July 12, 2016, the Permanent Court of Arbitration (PCA) issued a definitive ruling on China’s sweeping claims in the South China Sea.

The Philippines filed their arbitration suit in January 2003. China refused to participate in the hearings, arguing that the PCA and the UN Convention on the Law of the Sea do not have the legal authority to rule on sovereignty issues. The Philippines wrote their submission in a way that sovereignty was never the issue at hand, instead focusing on the issues of entitlements of certain features, historical rights, environmental degradation and the meaning of the nine-dash line.

The PCA took China’s consideration into account, and in December 2015, ruled that it had standing to rule on 15 specific points. Their ruling was the strongest affirmation of the rule of law and creates an important legal precedent. The decision is a landmark ruling and a devastating blow to China.

Few legal scholars or international relations specialists were expecting the Court to rule unanimously in the Philippines favor on 14 of 15 counts. Most importantly, the PCA ruled that the nine-dash line has no basis in international law and that the historical rights claimed by China were “extinguished” by the ratification of UNCLOS. The Court ruled that no feature in the Spratly Island is a habitable feature in its natural state, and therefore, no feature is entitled to a 200 nautical mile exclusive economic zone (EEZ).

In short, the PCA ruled that China has no exclusive right to resources in the East Vietnam Sea when it claimed almost 90 per cent of them. No other country stands to gain more from the ruling than Vietnam. “Vietnam welcomes the arbitration court issuing its final ruling,” the Ministry of Foreign Affairs said in a terse statement.

“Vietnam strongly supports the resolution of the disputes in the South China Sea by peaceful means, including diplomatic and legal processes and refraining from the use or threats to use force, in accordance with international law.”

First, the legal invalidation of the nine-dash line is crucial. China’s nine-dash line clearly violated Vietnam’s EEZ and continental shelf rights, garnered from its coastline. China has no legal rights to fish or drill for hydrocarbons. The PCA ruling was unequivocal: China has violated the Philippines’ EEZ and continental shelf rights.

The same holds true for Vietnam. However, while this may make international oil firms think twice about bidding on Chinese exploration blocks on Vietnam’s continental shelf, China will continue to enforce sovereignty via its maritime militia.

Second, the PCA’s invalidation of China’s historical rights is critical. As the court ruled that the Philippines, too, enjoyed historical rights in those waters, it should follow that Vietnam shares the same rights; that is, historical rights are not mutually exclusive.

Third, the sweeping and thorough nature of the ruling means that Vietnam does not have to file an arbitration suit over the Spratly’s. Hanoi has been able to free ride on the courageous leadership of the Philippines. This is critical.

In 2014, at the height of the furore over the HYSY-981 oil rig placed clearly on Vietnam’s continental shelf, then Prime Minister Nguyen Tan Dung made clear that it was a matter of when, not if, it would join the Philippines and also file a suit with the PCA. But following China’s dispatch of State Counselor Yang Jiechi to Hanoi, in June 2014, that position was dropped.

Hanoi did file a brief with the PCA, but only to request the tribunal to take Vietnam’s legal position into consideration. While Beijing was not pleased with Hanoi, it was far short of a separate arbitration. But now Hanoi needs not test those diplomatic waters.

That said, Vietnam could use the PCA findings to lodge a suit against China regarding the Paracels, asking for clarification regarding features, whether they be rocks, reefs of low tide elevations. Likewise, it could use the PCA ruling to challenge China’s drawing of straight baselines around the Paracels. I doubt, however, that Hanoi would be emboldened to go down that path.

The ruling does has several downsides for Vietnam. First, Vietnam, too, has no claim to an EEZ from any of its held features. At best, it will enjoy a 12 nautical mile (NM) Territorial Sea from a few, such as Spratly Island.

Second, the PCA ruled that “China has inflicted irreparable harm to the marine environment,” through its construction of seven islands and reclamation of others. Vietnam has also engaged in land reclamation, albeit to a much smaller degree, around two per cent of China’s. And the court was highly critical of China’s construction of islands while the court was deliberating, stating that such reclamation was “incompatible with the obligations on a state during dispute resolution proceedings.” Hanoi should take note as it too is constantly upgrading its features. And it should also take note that the PCA ruling was unequivocal: artificial islands give no EEZ, and if they are constructed on low tide elevations, not even 12NM territorial seas.

Third, China may decide to draw straight baselines around its features in the Spratly Islands, just as it has done in the Paracels. The PCA has tried to preempt them from doing so, clearly stating “UNCLOS doesn’t provide for groups of islands to generate maritime zones collectively.” But that is what China will likely do, and those baselines will include Vietnamese held features.

China has said that the PCA’s ruling is “null and void,” that they inexplicably “violate international law,” and thus that it will not be bound by them. The Ministry of Foreign Affairs made this clear in a 12 July statement: “China’s territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected by those awards. China opposes and will never accept any claim or action based on those awards.” UNCLOS articles 288(4) and 296 (1) are clear in this.

So how is China likely to respond to the ruling?

At one extreme, it could increase the militarisation of the islands that it has built. It could deploy anti-aircraft missile batteries already based at the Paracels, as well as more fighter aircraft ahead of declaring an air defense identification zone (ADIZ). It certainly is not going to stop military operations and exercises in the South China Sea.

Short of that, it could lash out on a bilateral basis, meaning China could retaliate against the Philippines by beginning land reclamation at Scarborough Shoal, or at least continue to deny access there to Filipino fishermen. China could, likewise, deny Vietnam access to their features.

China will continue to enforce its claim of sovereignty, not through its navy or even its coast guard, but through its maritime militia; an armed and deputised fishing fleet that remains within the command and control of the security forces. The day before the PCA ruling, two Chinese vessels rammed and sunk a Vietnamese fishing boat. While Beijing has lost the legal fight, no country is pushing back regarding China’s unilateral enforcement of sovereignty through its fishermen.

China may weigh the costs of being overly aggressive. Despite its claims of substantial international support, only 10 countries openly support China’s legal position, and most of them are landlocked, poor, corrupt and dependent on Chinese aid. It wants to be a superpower, but without carrying any of the costs, such as leading by example, taking hits in international courts, or providing collective goods.

The Chinese leadership has painted themselves into a corner, by fanning the flames of nationalism in their state controlled media. The Chinese Communist Party has tried to harness nationalism, but more importantly tried to assert China’s “rights” lost in the two centuries of humiliation to the West and Japan, to legitimise the regime.

China is most likely to act closer to home, and continue to use its influence over Cambodia, Laos, Brunei, and even Myanmar, to prevent a unified response from ASEAN, which meets in a few weeks’ time.

It has not helped that following the PCA ruling there was deafening silence out of Jakarta, and even worse, the conflicting signals that we have seen from the TNI, Ministries of Foreign Affairs, Fisheries, and the President’s office. Without Indonesian leadership, there can be no effective ASEAN response.

So there are three things that Hanoi must do. First, Vietnam must use all the leverage at their disposal, especially over Laos and Cambodia. But it has recently dawned on Hanoi how little of their historical influence they still maintain. Vietnam would be wise to remind Hun Sen how much Cambodia relies on international courts and other countries accepting their ruling regarding its claim to Preah Vihear. ASEAN centrality, seemingly jettisoned at Kunming, must be restored. And then, the group must use the ruling as a new impetus to push for a binding Code of Conduct with China.

Second, Vietnam will have to use their coast guard to counter Chinese fishermen and maritime militia. The rule of law is on Vietnam’s side, but it must be enforced. As long as China can unilaterally deny others access to the South China Sea, it has de facto sovereignty.

Third, it must work with other states to give China a face-saving way out. Until Beijing realises that it’s in its interest to accept the ruling, it will not abide by it. The downside of the ruling is that it is so unequivocal that it doesn’t give China any face-saving way out.

There’s one last thing Hanoi should note: independent courts can produce some wonderful outcomes if free from political interference. It may consider that at home, where its commitment to the rule of law seems a lot less convincing than it did today in support of the PCA ruling.

Dr Zachary Abuza is a Professor at the National War College, in Washington, DC, where he focuses on Southeast Asian politics and security issues, including governance, insurgencies, democratisation and human rights, and maritime security.

Source:

Hanoi’s hopes rise with China’s dashed nine-dash line

9 thoughts on “South China Sea: Vietnam benefits from PCA ruling but China is not without options

  1. China perceives that Vietnam, the Philippines and Malaysia are just junior partners of the US conspiracy to contain China.

  2. Buying and bullying or dividing its way is not sustainable even for China especially in ASEAN which is fundamentally financially sound and have long upwards trajectory. Whatever China feels are its “rights”, it cannot just demand and force, it must convince in a multi-polar world. All it takes, is its own domestic problems either severe or long enough and it will have to retreat and lose whatever it can gain through its programs now..

  3. This is China’s own Monroe Doctrine. Whether those islands can generate 200 mile EEZ is besides the point. Facts on the ground is they have the neccessasy assets, through the fortifications of those reclaimed islands, through their ever expanding naval capabilities, to assert an unchallenged position in the South China Sea.

    The only way ASEAN can push back is to also build up their own fortifications to match. But who would be capable of doing that individually? We can forget about a united ASEAN effort, because contrary to what we’ve been fed through the usual western dominated newstream, every ASEAN claimants, apart from having the dispute with China, is also disputing it among themselves. Every claims does overlap with each other.

    Unless any claimant or the United States for that matter are willing to start a shooting war with China, nothing will change. Even if conflicts does arise, those reclaimed islands aren’t exactly sitting ducks. True, by themselves they would be vulnerable, but military assets from mainland China is near enough to provide reinforcements. The SCS is near enough to the mainland to have a sort of “home ground adavantage”, but far enough to not drag the China into a full blown national level war. Any pre-emptive strike to take out mainland assets would definitely be considered a situation that warrants a Nuclear solution, and any sane body would not be willing to risk that.

    At the end of the day, from China’s perspective, this is all about self preservation. Their continued prosperity hinge very much to their ability to safe guard their sea lanes of trade. The often heard $5 trillion trade that passes though the SCS, how much of that trade involve China? Perhaps as much as 80%. Why would it be beneficial for China to disrupt that? The guarantor of this security at the moment is the United States. But would you expect China to leave their own future to the benovelence of their foremost rival?

    In order for Malaysia to have a bigger say in the future of SEA, we need to have the neccessary bargaining chips. Such as a sound economy, strong defense and most importantly of all, a united and cohesiive social and cultural national identity.

    Welcome to the Real World.

  4. US and Japan use Philippines as a political tools to achieve their hegemony and troubles, just look at North African countries, Iraq, Libya, Syria, Middles East countries, Ukraine, Vietnam war, Korean war, created floods of refugees…..now South China Sea?

    USA and its War criminals WW2 Japanese German with 4 European judges hijacked the International law and created Arbitral court not a UN agency are making troubles among Asean and China

    China issues white paper on SCS; Arbitral court not an UN agency, unjust and questionable judges…
    http://right-waystan.blogspot.my/2016/07/china-issues-white-paper-on-scs.html

  5. Shonen

    How do we achieve a cohesive social and cultural national identity when we cant even agree on medium of instruction for schools. One politician even openly supporting China’s claim though he knows that that will be detrimental to our own claim.It is as though China is his homeland and not Malaysia.Its sad but true.

  6. Why the author keep on emphasizing the word “face-saving” in reference to China? As if only China wants “face” and not the USA, the EU and all the gweilos? Shallow and stupid, is it not?

  7. Arbitral court not a UN agency – Arbitration tribunal not linked to UN
    Arbitral Tribunal on South China Sea Disputes not Primary Judicial Branch of UN: Former ICJ Judge

    Questionable judges:

    The Star:

    PETALING JAYA: China has questioned the neutrality and appointment of judges of an arbitral tribunal in The Hague which ruled in favour of the Philippines over their Spratly Islands dispute.

    Selection Dispute: China is crying foul over appointments made by Shunji Yanai.

    China Foreign vice-minister Liu Zhenmin questioned the “procedural justice” of the appointment and the operation of the tribunal, South China Morning Post reported.

    The tribunal was formed after the Philippines filed a case with the International Tribunal on the Law of the Sea (ITCLOS) in 2013 after a stand-off with China at the Scarborough Shoal the previous year.

    Of the five judges, one was selected by the Philippines and the rest by Shunji Yanai (pic), the then president of ITCLOS, which was established under the United Nations Convention on the Law of the Sea. This was reportedly due to China’s refusal to take part or recognise the tribunal.

    Yanai was not among the panel of arbitrators.

    “Leaving aside the obvious violation of procedural justice, we can hardly make a better explanation of judge Yanai’s motivation and purpose other than that he did it on purpose,” Liu said.

    Born in Tokyo on Jan 15, 1937, Yanai read law at the University of Tokyo.

    He served in the foreign ministry and was Japan’s ambassador to Washington.

    He was also chairman of a panel which advised Japan’s government to revise its constitution to allow military action overseas.

    The arbitral tribunal on Tuesday ruled that China had violated the Philippines’ sovereign rights in its Exclusive Economic Zone through its large-scale activities in the South China Sea.

    The tribunal arbitrators included Thomas A. Mensah of Ghana, Jean-Pierre Cot of France, Stanislaw Pawlak of Poland, Prof Alfred H.A. Soons from Holland and Rüdiger Wolfrum from Germany. – By Wang Qingyun (China Daily)

    Who is Shunji Yanai?

    Fire has been focused on the person who picked the arbitrators – Japanese judge Shunji Yanai, who has been branded a “rightist” and “unfriendly to China”.

    Foreign Vice-minister Liu Zhenmin questioned the “procedural justice” of the appointment

    China has refused to take part in the proceedings, and in its absence, four of the five arbitrators were appointed by Yanai, who at the time the case was filed in 2013 was president of the International Tribunal for the Law of the Sea (ITLOS), established under the UN Convention on the Law of the Sea. The other one was named by the Philippines.

    Yanai should have avoided involvement given the territorial and maritime disputes between China and Japan in the East China Sea, and Tokyo’s attempts to involve itself in the South China Sea issue.

    Yanai has long been a figure of scorn among nationalist Chinese. A commentary by Xinhua described Yanai, a former senior Japanese foreign ministry official who also served as the country’s ambassador to Washington, as a “typical rightist, hawkish figure”.

    In 2007, during Shinzo Abe’s first term as Japanese prime minister, Yanai served as chairman of a panel set up to advise Abe on his plan to revise the constitution to allow military action overseas. “South Korea also expressed its concerns over Yanai’s presidency of ITLOS as it also has territorial disputes with Japan,” Xinhua said.

    Soon after the appointment of the tribunal, Yanai told Japanese broadcaster NHK that the islands of Japan were under enemy threat, according to a research report by the Chinese Initiative on International Law, a Hong Kong and Hague-registered NGO whose members are legal professionals and academics.

    Although Yanai did not explicitly name the “enemy”, such a statement was clear enough for China to raise concerns over his impartiality in the case, the report said.

    In his article in Qiushi, Liu also cast doubt on the make-up of the tribunal, saying none of the five judges – one African and four Europeans – had knowledge of the history and international order of ancient East Asia.

    But Yanai’s involvement could have been avoided. If China had decided to take part in the proceedings, it could have named one of the tribunal’s arbitrators and jointly appointed three others in agreement with the Philippines.

  8. This so called arbitration is not only a law-abusing act by the West, but also to mislead and cheat the innocents.

    It is an opportunity for those capable to rise up to reform obsolete European court.

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