UN court rules: China violated Philippine rights
(The Philippine Star) - July 13, 2016 - 12:00am

Highlights of ruling

• No legal basis for China to claim historic rights to a ‘nine-dash line’

• Panganiban (Mischief) Reef, Ayungin (Second Thomas) Shoal and Recto (Reed) Bank form part of the Philippines’ exclusive economic zone and continental shelf

• Panatag (Scarborough Shoal) is a common traditional fishing ground; no country can prevent others from fishing in the area; China violated traditional fishing rights of the Philippines by preventing Filipinos from fishing in the shoal

• China violated the Philippines’ sovereign rights by constructing artificial islands, interfering with Filipinos’ fishing and oil exploration, and failing to prevent Chinese from fishing in the Philippine EEZ

• China’s island reclamation aggravated the dispute during arbitration and inflicted irreparable harm on the marine environment

THE HAGUE – China has no historic title to nearly the entire South China Sea, a UN-backed tribunal ruled yesterday, as it awarded the Philippines “sovereign rights” over three disputed areas.

In a landmark unanimous ruling, the Permanent Court of Arbitration based in The Hague awarded the Philippines sovereign rights over Panganiban or Mischief Reef, Ayungin or Second Thomas Shoal and Recto or Reed Bank off Palawan.

The court did not award sovereign rights to the Philippines over Panatag or Scarborough Shoal, which lies just over 120 nautical miles from Zambales. But the court said it was a traditional fishing ground for several countries and neither China nor the Philippines had the right to prevent anyone from fishing in the shoal.

China therefore violated Philippine rights when it barred Filipino fishermen from entering the shoal, the court declared.

Noting that both the Philippines and China had ratified the United Nations Convention on the Law of the Sea, on which the court ruling was based, the arbitral tribunal pointed out that UNCLOS provides that the “award… shall be complied with by the parties to the dispute.”

China had refused to participate in the arbitration except to challenge its jurisdiction over the maritime dispute. But the court ruled last year that it had jurisdiction over the case.

Ruling that Beijing’s so-called “nine-dash line” historic claim over nearly all of the South China Sea has “no legal basis,” the tribunal also ruled that China violated Philippine sovereign rights by constructing artificial islands and interfering with Filipino fishing activities.

China’s island reclamation also aggravated the maritime dispute and caused irreparable harm to the marine environment, the tribunal ruled.

“The tribunal concluded that there was no legal basis for China to claim historic rights within the sea areas falling within the ‘nine-dash line’,” The Hague-based Permanent Court of Arbitration said in a statement.

Manila – which had lodged the suit against Beijing in 2013 – welcomed the ruling, with Foreign Affairs Secretary Perfecto Yasay Jr. saying the decision “upholds international law, particularly the 1982 UNCLOS.”

“In the meantime, we call on all those concerned to exercise restraint and sobriety,” he said.

China reacted furiously, saying it “does not accept and does not recognize” the decision. Beijing had refused to participate in the case, saying the tribunal had “no jurisdiction” over the issue.

Beijing claims most of the South China Sea, even waters approaching neighboring countries, as its sovereign territory, basing its arguments on Chinese maps dating back to the 1940s marked with a so-called nine-dash line.

But in its hard-hitting ruling, the PCA said Beijing “had no historic rights to resources in the waters of the South China Sea” and that “such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention,” referring to UNCLOS.

While “bad faith is not presumed” under the fundamental principle of international law, UNLOS provides that “award… shall be complied with by the parties to the dispute,” it said.

“China had violated the Philippines’ sovereign rights in the exclusive economic zone by interfering with Philippine fishing and petroleum exploration, by constructing artificial islands and failing to prevent Chinese fishermen from fishing in the zone,” the PCA said.

The tribunal further ruled that the disputed Spratly islands “cannot generate maritime zones collectively as unit” as claimed by China.

Yesterday’s judgment comes against the backdrop of frequent military brushes between China and its Asian neighbors the Philippines, Vietnam, Malaysia, Brunei and Taiwan, which ring the waters believed to hold untapped oil and gas reserves.

The tensions have also alarmed the US, which has key defense treaties with many regional allies, and in a show of strength last week sent warships to patrol close to some of the reefs and islands claimed by China.

President Duterte had said he was optimistic of a favorable ruling, but offered to hold conciliatory talks with China and vowed he would not “taunt or flaunt” any favorable ruling.

Referring to the UNCLOS, Manila contended the nine-dash line had no basis under international law and that Beijing had no “historic” claim to the waters.

Common fishing ground

The court also held that fishermen from the Philippines and China had traditional fishing rights at the Scarborough (Panatag) Shoal and that China had interfered with these rights in restricting access to the area.

The Chinese seized Panatag Shoal in 2012 after a standoff with the Philippine Navy which tried to arrest Chinese poachers in the area.

It also held that Chinese law enforcement vessels “had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.”

The tribunal also cited the “harm to the environment” caused by China’s large-scale reclamation and island building activities in the South China Sea. Such construction activities, the tribunal said, were “incompatible with the obligations of a state during dispute resolutions proceedings,” citing China’s having inflicted “irreparable harm” to the marine environment, built artificial island in Philippine waters and “destroyed evidence of natural condition of features in the South China Sea” that were being disputed.

“China had caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened or endangered species,” the ruling read.

It added Chinese authorities were aware of the poaching activities of Chinese fishermen but did not stop them.

The ruling also stated that Panganiban Reef, Ayungin Shoal and Recto Bank are submerged at high tide and form part of the Philippines’ exclusive economic zone (EEZ). The tribunal said it found “as a matter of fact” that China had interfered with a Philippine oil exploration at Recto Bank.

But the tribunal said it lacked jurisdiction to consider the implications of a standoff between Philippine marines and Chinese naval and law enforcement vessels at the Ayungin Shoal, as such dispute involved military activities and therefore excluded from compulsory settlement.

The court also ruled that none of the Spratly Islands is capable of generating extended maritime zones. It also held that the Spratly Islands cannot generate maritime zones collectively as a unit.

“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.”

In light of limitations on compulsory dispute settlement under UNCLOS, the tribunal has emphasized that it does not rule on any question of sovereignty over land territory and does not delimit any boundary between parties involved.

Throughout the proceedings, the tribunal said it has taken steps to “test the accuracy of the Philippines’ claims,” including requesting further written submissions and thorough questioning of its representatives.

China has also made clear through the publication of a position paper in December 2014 and in other official statements that, in its view, the tribunal lacks jurisdiction in this matter.

The Philippines, under former foreign secretary Albert del Rosario, is the first country to bring China to court and challenge Beijing’s expansive and excessive claims in the South China Sea.

Sitting in the tribunal were H.A. Soons of the Netherlands and Judge Rüdiger Wolfrum of Germany. Judge Thomas A. Mensah served as president of the tribunal. 

Principal Philippine counsel Paul Reichler debunked China’s historic rights claim and how these purported historic rights, supposedly derived from UNCLOS, in fact do not exist under the convention’s provisions.

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