UN-backed panel says China has no historic rights to resources in South China Sea
By Goh Sui Noi, East Asia Editor, The Straits Times, 13 Jul 2016
A United Nations-backed arbitral tribunal has determined that there is no legal basis to China's expansive claims to the South China Sea, in a strongly worded and sweeping ruling that surprised many observers and drew a swift rejection from Beijing.
The tribunal yesterday released its legally binding award on an arbitration case brought by the Philippines against China's claims, in which it invalidated the "nine-dash line" on which China has based its claims. The five-man tribunal based at The Hague ruled that there was no legal basis for China to claim historic rights to resources in the sea areas within the line.
It said there is no evidence that China "had historically exercised exclusive control over the waters or its resources", although its navigators and fishermen, as well as those of other states, had made use of the islands in the areas.
It further invalidated the U-shaped nine-dash line, which covers two-thirds of the South China Sea, by ruling that land forms that China claims in the Spratly chain of islands cannot sustain human habitation or economic life. They are therefore not entitled to extended maritime zones, that is, 200-nautical mile exclusive economic zones (EEZ).
China yesterday dismissed the ruling, with Foreign Minister Wang Yi calling the tribunal a "political farce" that has "put the dispute into dangerous territory of worsening tensions and confrontation".
The Philippines was measured in its response, calling for "restraint and sobriety", even as anti-China activists celebrated by releasing thousands of balloons in the colours of the national flag.
Sounding conciliatory, Philippine Foreign Minister Perfecto Yasay said his country "reiterates its abiding commitment to efforts to pursue the peaceful resolution and management of disputes with a view to promoting and enhancing peace and stability in the region".
Manila had brought the case against China in 2013, months after its giant neighbour wrested control of Scarborough Shoal, within the Asean state's EEZ, and prevented Philippine fishermen from fishing there. The tribunal found that China had violated the traditional fishing rights of Filipinos by not allowing them to fish at the shoal.
In 2014, China began building artificial islands on several reefs that it occupies in the Spratly Islands and placing military installations, including airstrips, on them. This led the United States to start freedom of navigation operations to challenge what it saw as China's excessive maritime claims, adding to tensions in the South China Sea.
By Goh Sui Noi, East Asia Editor, The Straits Times, 13 Jul 2016
A United Nations-backed arbitral tribunal has determined that there is no legal basis to China's expansive claims to the South China Sea, in a strongly worded and sweeping ruling that surprised many observers and drew a swift rejection from Beijing.
The tribunal yesterday released its legally binding award on an arbitration case brought by the Philippines against China's claims, in which it invalidated the "nine-dash line" on which China has based its claims. The five-man tribunal based at The Hague ruled that there was no legal basis for China to claim historic rights to resources in the sea areas within the line.
It said there is no evidence that China "had historically exercised exclusive control over the waters or its resources", although its navigators and fishermen, as well as those of other states, had made use of the islands in the areas.
It further invalidated the U-shaped nine-dash line, which covers two-thirds of the South China Sea, by ruling that land forms that China claims in the Spratly chain of islands cannot sustain human habitation or economic life. They are therefore not entitled to extended maritime zones, that is, 200-nautical mile exclusive economic zones (EEZ).
China yesterday dismissed the ruling, with Foreign Minister Wang Yi calling the tribunal a "political farce" that has "put the dispute into dangerous territory of worsening tensions and confrontation".
The Philippines was measured in its response, calling for "restraint and sobriety", even as anti-China activists celebrated by releasing thousands of balloons in the colours of the national flag.
Sounding conciliatory, Philippine Foreign Minister Perfecto Yasay said his country "reiterates its abiding commitment to efforts to pursue the peaceful resolution and management of disputes with a view to promoting and enhancing peace and stability in the region".
Manila had brought the case against China in 2013, months after its giant neighbour wrested control of Scarborough Shoal, within the Asean state's EEZ, and prevented Philippine fishermen from fishing there. The tribunal found that China had violated the traditional fishing rights of Filipinos by not allowing them to fish at the shoal.
In 2014, China began building artificial islands on several reefs that it occupies in the Spratly Islands and placing military installations, including airstrips, on them. This led the United States to start freedom of navigation operations to challenge what it saw as China's excessive maritime claims, adding to tensions in the South China Sea.
The tribunal also addressed China's land reclamation since the beginning of the arbitration. It said China has caused damage to the coral reef ecosystem and permanently destroyed evidence of the natural condition of the land forms as a result, and has therefore "violated its obligations to refrain from aggravating or extending" the disputes.
Analysts were surprised by what they saw as a bold and sweeping ruling. This "will put greater pressure on China to respond, though 'how' is uncertain", said Massachusetts Institute of Technology political science professor M. Taylor Fravel.
Countries in the region reacted by calling for calm and restraint.
Singapore urged "all parties to fully respect legal and diplomatic processes", while Indonesia encouraged "all claimant states to resume talks on the dispute peacefully and in accordance with international law". The White House called on all claimants to "avoid provocative statements or actions" and stressed that it strongly supported the rule of law. Asean did not put out a joint statement, but said through its official Twitter account that member states reiterated their commitment to the early conclusion of a regional Code of Conduct to manage disputes.
Singapore urged "all parties to fully respect legal and diplomatic processes", while Indonesia encouraged "all claimant states to resume talks on the dispute peacefully and in accordance with international law". The White House called on all claimants to "avoid provocative statements or actions" and stressed that it strongly supported the rule of law. Asean did not put out a joint statement, but said through its official Twitter account that member states reiterated their commitment to the early conclusion of a regional Code of Conduct to manage disputes.
Philippines calls for 'restraint and sobriety'
It is committed to efforts to pursue peaceful resolution of disputes, says foreign minister
By Raul Dancel, Philippines Correspondent In Manila, The Straits Times, 13 Jul 2016
The Philippines called for "restraint and sobriety" after an arbitration tribunal at The Hague gave it a sweeping victory in a case that it filed to challenge China's expansive claims in the South China Sea.
"We call on all those concerned to exercise restraint and sobriety," Foreign Minister Perfecto Yasay said after the ruling.
He also said the Philippines "strongly affirms its respect for this milestone decision as an important contribution to ongoing efforts in addressing disputes in the South China Sea".
The Philippines "reiterates its abiding commitment to efforts to pursue the peaceful resolution and management of disputes, with a view to promoting and enhancing peace and stability in the region", he added. A five-man tribunal convened by the Permanent Court of Arbitration struck down China's "historic rights", which Beijing used to justify a "nine-dash line" encircling over two-thirds of the 3.5 million sq km South China Sea.
China cited historical evidence and ancient maps in a "position paper" it released in 2014 to support the line.
But the tribunal ruled that the "nine-dash line" is inconsistent with an international treaty that uses land features, instead of historic rights, in determining sea borders.
Philippine President Rodrigo Duterte, who is hoping to engage China in talks on jointly tapping resources in the South China Sea, did not issue a statement.
However, he previously said Manila will not use any favourable ruling to "taunt" China.
It is committed to efforts to pursue peaceful resolution of disputes, says foreign minister
By Raul Dancel, Philippines Correspondent In Manila, The Straits Times, 13 Jul 2016
The Philippines called for "restraint and sobriety" after an arbitration tribunal at The Hague gave it a sweeping victory in a case that it filed to challenge China's expansive claims in the South China Sea.
"We call on all those concerned to exercise restraint and sobriety," Foreign Minister Perfecto Yasay said after the ruling.
He also said the Philippines "strongly affirms its respect for this milestone decision as an important contribution to ongoing efforts in addressing disputes in the South China Sea".
The Philippines "reiterates its abiding commitment to efforts to pursue the peaceful resolution and management of disputes, with a view to promoting and enhancing peace and stability in the region", he added. A five-man tribunal convened by the Permanent Court of Arbitration struck down China's "historic rights", which Beijing used to justify a "nine-dash line" encircling over two-thirds of the 3.5 million sq km South China Sea.
China cited historical evidence and ancient maps in a "position paper" it released in 2014 to support the line.
But the tribunal ruled that the "nine-dash line" is inconsistent with an international treaty that uses land features, instead of historic rights, in determining sea borders.
Philippine President Rodrigo Duterte, who is hoping to engage China in talks on jointly tapping resources in the South China Sea, did not issue a statement.
However, he previously said Manila will not use any favourable ruling to "taunt" China.
Communications Minister Martin Andanar said the government's chief lawyer will submit to Mr Duterte a "synopsis" and an "interpretation" of the 479-page ruling within the next five days.
The Philippines' lead lawyer at the tribunal, Mr Paul Reichler, said the ruling "has very strong implications for the other coastal states in the South China Sea".
He added that the decision establishes that "it's just as illegal for China to apply (the nine-dash line) against Vietnam, Malaysia and Indonesia".
Philippine Supreme Court Justice Francis Jardeleza, who was solicitor-general when he led the country's team in the arbitration proceedings, said the ruling will be a "potent legal platform" to help achieve the "goal of effectively asserting our maritime entitlements".
Even before the tribunal released its decision, anti-China activists were holding a "victory party" to celebrate what they expected would be a ruling in favour of the Philippines.
Philippine Supreme Court Justice Francis Jardeleza, who was solicitor-general when he led the country's team in the arbitration proceedings, said the ruling will be a "potent legal platform" to help achieve the "goal of effectively asserting our maritime entitlements".
Even before the tribunal released its decision, anti-China activists were holding a "victory party" to celebrate what they expected would be a ruling in favour of the Philippines.
There was dancing at a restaurant in Manila during a "thanksgiving lunch" hosted by groups that have been protesting against what they see as China's incursions into waters belonging to the Philippines.
Hundreds of activists released thousands of balloons in the red, blue, white and yellow colours of the Philippine flag, and chanted "Chexit" - a play on the phrase "China exit" - as they repeated calls for China to withdraw from Philippine-held territories.
Earlier in the morning yesterday, protesters marched towards the Chinese Embassy in Manila, carrying placards with slogans that read, "This is ours, China leave", and "Hands off Philippines".
Earlier in the morning yesterday, protesters marched towards the Chinese Embassy in Manila, carrying placards with slogans that read, "This is ours, China leave", and "Hands off Philippines".
Among the protesters were fishermen from communities that had suffered from China's blockade of the area around an atoll known as Scarborough Shoal.
China rejects ruling, deems it null and void
President Xi says S. China Sea and isles have been Chinese territory since ancient times
By Kor Kian Beng, China Bureau Chief In Beijing, The Straits Times, 13 Jul 2016
China has summarily rejected the ruling by an arbitration tribunal against its South China Sea territorial claims, with the government calling it "null and void" and President Xi Jinping stating that Beijing would not accept any calls or actions arising from the outcome.
Speaking to European Union leaders at a China-EU summit here yesterday, Mr Xi said the South China Sea and its isles have been Chinese territory since ancient times.
"Our national sovereignty and our maritime rights and interests in the South China Sea will not be affected in any way by the ruling and case brought about by the Philippines," he was quoted as saying in media reports published after the ruling.
Chinese Foreign Minister Wang Yi called the case "a political farce" and said it "has put the dispute into dangerous territory of worsening tensions and confrontation".
In a show of solidarity, more than 20,000 people signed an open letter, drafted by a group of young Chinese scholars, to criticise the tribunal for ruling on a case which, they say, it has no jurisdiction over.
The Foreign Ministry issued two statements, with one laying out reasons why the tribunal has no jurisdiction over the case and the other maintaining China's claims over the disputed waters and isles.
President Xi says S. China Sea and isles have been Chinese territory since ancient times
By Kor Kian Beng, China Bureau Chief In Beijing, The Straits Times, 13 Jul 2016
China has summarily rejected the ruling by an arbitration tribunal against its South China Sea territorial claims, with the government calling it "null and void" and President Xi Jinping stating that Beijing would not accept any calls or actions arising from the outcome.
Speaking to European Union leaders at a China-EU summit here yesterday, Mr Xi said the South China Sea and its isles have been Chinese territory since ancient times.
"Our national sovereignty and our maritime rights and interests in the South China Sea will not be affected in any way by the ruling and case brought about by the Philippines," he was quoted as saying in media reports published after the ruling.
Chinese Foreign Minister Wang Yi called the case "a political farce" and said it "has put the dispute into dangerous territory of worsening tensions and confrontation".
In a show of solidarity, more than 20,000 people signed an open letter, drafted by a group of young Chinese scholars, to criticise the tribunal for ruling on a case which, they say, it has no jurisdiction over.
The Foreign Ministry issued two statements, with one laying out reasons why the tribunal has no jurisdiction over the case and the other maintaining China's claims over the disputed waters and isles.
It reiterated that the tribunal has no jurisdiction over a case involving matters of territorial sovereignty and maritime delimitation, and that the Philippines had disregarded pacts with China to resolve the dispute through bilateral talks.
The second statement said China's sovereignty and maritime rights and interests are "based on the practice of the Chinese people and the Chinese government in the long course of history and the position consistently upheld by successive Chinese governments".
The second statement said China's sovereignty and maritime rights and interests are "based on the practice of the Chinese people and the Chinese government in the long course of history and the position consistently upheld by successive Chinese governments".
They are also "in accordance with national law and international law, including the United Nations Convention on the Law of the Sea", it added.
The ministry also spelt out specifically China's sovereignty over four island chains in the South China Sea, including the Xisha and Nansha islands, also known as the Paracels and Spratlys respectively.
The statement runs against the ruling by the tribunal, which concluded that there was no legal basis for China to claim historic rights to resources in the sea falling within the "nine-dash line".
The tribunal also held that none of the Spratly islands is capable of generating extended maritime zones and that the Spratlys cannot generate maritime zones collectively as a unit.
Chinese state media dismissed the ruling.
"Be it in the past or in the future, any attempts to challenge China's bottom line would be akin to smashing one's feet with a rock. The Chinese people's determination in protecting the country's territorial sovereignty and maritime rights and interests is unwavering," said the People's Daily.
Tough rhetoric aside, China did not take any action predicted by observers in the event of an unfavourable outcome.
Analysts say China could be adopting a wait-and-see approach.
Sino-Asean expert Xu Liping said Beijing might want to see if Manila would agree to holding bilateral talks and also if other claimant states would want to take their case to a tribunal.
"Also, China may be thinking it would be hard for the ruling to be implemented to have any real impact on its claims," he told The Straits Times.
Chinese state media dismissed the ruling.
"Be it in the past or in the future, any attempts to challenge China's bottom line would be akin to smashing one's feet with a rock. The Chinese people's determination in protecting the country's territorial sovereignty and maritime rights and interests is unwavering," said the People's Daily.
Tough rhetoric aside, China did not take any action predicted by observers in the event of an unfavourable outcome.
Analysts say China could be adopting a wait-and-see approach.
Sino-Asean expert Xu Liping said Beijing might want to see if Manila would agree to holding bilateral talks and also if other claimant states would want to take their case to a tribunal.
"Also, China may be thinking it would be hard for the ruling to be implemented to have any real impact on its claims," he told The Straits Times.
Avoid provocative statements or actions, urges US
By Jeremy Au Yong, US Bureau Chief In Washington and Francis Chan, Indonesia Bureau Chief in Jakarta, The Straits Times, 13 Jul 2016
The United States has called for restraint from all parties in the wake of the arbitration tribunal's ruling on the South China Sea.
Echoing sentiments from several South-east Asian nations yesterday, State Department spokesman John Kirby urged all claimants to "avoid provocative statements or actions".
He also stressed that the US strongly supported the rule of law.
Washington hailed the tribunal's ruling - which, among other things, invalidated China's historical claims based on its "nine-dash" map - as an "important contribution to the shared goal of a peaceful resolution to disputes" in the South China Sea.
"This decision can and should serve as a new opportunity to renew efforts to address maritime disputes peacefully," Mr Kirby said.
By Jeremy Au Yong, US Bureau Chief In Washington and Francis Chan, Indonesia Bureau Chief in Jakarta, The Straits Times, 13 Jul 2016
The United States has called for restraint from all parties in the wake of the arbitration tribunal's ruling on the South China Sea.
Echoing sentiments from several South-east Asian nations yesterday, State Department spokesman John Kirby urged all claimants to "avoid provocative statements or actions".
He also stressed that the US strongly supported the rule of law.
Washington hailed the tribunal's ruling - which, among other things, invalidated China's historical claims based on its "nine-dash" map - as an "important contribution to the shared goal of a peaceful resolution to disputes" in the South China Sea.
"This decision can and should serve as a new opportunity to renew efforts to address maritime disputes peacefully," Mr Kirby said.
Describing the ruling as "final and legally binding", he urged both China and the Philippines to abide by the result.
Beijing has rejected the tribunal's ruling.
Beijing has rejected the tribunal's ruling.
Meanwhile, calls for restraint and efforts to seek a peaceful solution came from several South-east Asian countries yesterday.
In Hanoi, Vietnam's Foreign Ministry welcomed the verdict and stressed that it supported the peaceful resolution of disputes.
Indonesia, meanwhile, said it would continue to encourage the creation of a peaceful, free and neutral zone in the region in order to strengthen the Asean community.
"Indonesia encourages all claimant states to resume talks on the dispute peacefully... and in accordance with international law," said its Foreign Ministry.
In a statement issued yesterday ahead of the ruling, Thailand said the "ultimate goal for all that would benefit the people should be to render the South China Sea a sea of peace, stability and sustainable development".
The response of Asean to the tribunal's ruling is being closely watched amid signs of a growing divide within the 10-member regional grouping over the territorial disputes in the South China Sea.
Yesterday, Asean did not release a joint statement but its Jakarta-based secretariat said through its official Twitter account that member states reaffirmed commitment to the full implementation of the Declaration of Conduct (DOC).
The DOC, which was signed by China and Asean members, states that they should refrain from activities that would complicate or escalate disputes.
Thai Prime Minister Prayut Chan-o-cha added later in the day that Bangkok would not push for a consensus on the South China Sea issue during the Asean ministerial meeting in Laos later this month, The Nation reported.
"For now, we should reserve our position and let (the contestants) do their own talks," he said.
Elsewhere, Japan - which has its own territorial disputes with China but has no claims in the South China Sea - said all parties should comply with the ruling.
"Japan strongly expects that the parties' compliance with this award will eventually lead to the peaceful settlement of disputes in the South China Sea," said a statement from Japanese Foreign Minister Fumio Kishida.
Additional reporting by Tan Hui Yee and Walter Sim.
Additional reporting by Tan Hui Yee and Walter Sim.
Singapore studying implications of ruling
The Straits Times, 13 Jul 2016
Singapore is studying the Arbitral Tribunal's ruling in the Philippines versus China case and its implications on the Republic and the wider region, the Ministry of Foreign Affairs (MFA) said yesterday.
The Straits Times, 13 Jul 2016
Singapore is studying the Arbitral Tribunal's ruling in the Philippines versus China case and its implications on the Republic and the wider region, the Ministry of Foreign Affairs (MFA) said yesterday.
"Singapore has taken note of the Award made by the Arbitral Tribunal convened under Annex VII to the 1982 United Nations Convention on the Law of the Sea (Unclos) on 12 July 2016 on the case between the Republic of the Philippines and the People's Republic of China.
"We are studying the Award and its implications on Singapore and the wider region," the ministry said in a statement.
"Singapore is not a claimant state and we do not take sides on the competing territorial claims. However, we support the peaceful resolution of disputes among claimants in accordance with universally-recognised principles of international law, including Unclos, without resorting to the threat or use of force.
"As a small state, we strongly support the maintenance of a rules-based order that upholds and protects the rights and privileges of all states," the MFA said.
"Singapore values our longstanding and friendly relations with all parties, bilaterally and in the context of Asean. We urge all parties to fully respect legal and diplomatic processes, exercise self-restraint and avoid conducting any activities that may raise tensions in the region," the statement said.
"Singapore supports the full and effective implementation of the Declaration on the Conduct of Parties in the South China Sea and the expeditious conclusion of a legally-binding Code of Conduct in the South China Sea," it added.
Tribunal ruling a game changer South China Sea
What the tribunal did not rule on is as significant as what it did. It doesn't say whose territorial claims are superior, or that China's nine-dash line claim is illegal per se, or that China's construction of artificial islands is in principle unlawful.
By Robert Beckman, Published The Straits Times, 14 Jul 2016
The final award in the Philippines versus China arbitration was the most anticipated decision of any international court or tribunal in the area of the law of the sea since the entry into force of the 1982 United Nations Convention on the Law of the Sea (Unclos) in 1994.
THE CONTEXT: 1982 UNCLOS
To understand the significance of the award, it must be viewed in the context of the 1982 Unclos. Unclos is generally regarded as one of the major achievements of the United Nations system. It purports to establish in one complex treaty a legal order for the seas and oceans that takes into account the needs and interests of all states by promoting the peaceful uses of the oceans, facilitating international communication through navigation and overflight, establishing rules for allocating and managing the natural resources of the oceans, and establishing rules for protecting and preserving the marine environment.
The 1982 Unclos was negotiated as a "package deal". To obtain rights to explore and exploit resources, coastal states had to accept obligations to protect and preserve the marine environment, and to cooperate to sustainably manage the living resources.
The representatives of states negotiating the Unclos understood that disputes would inevitably arise between state parties on the interpretation and application of its provisions. This is especially so since the negotiators were able to reach a consensus on some controversial issues only by agreeing to "deliberately ambiguous" language.
Also, the negotiators were aware that states would inevitably interpret the provisions in Unclos to maximise their national interests and in the light of their particular cultural and historical circumstances.
Consequently, the drafters included as an integral part of the "package deal" the most complex dispute settlement regime ever devised in an international convention.
When a state becomes a party to Unclos, it agrees in advance to a system of compulsory dispute settlement that can result in a final and binding decision by an international court or arbitral tribunal. In essence, Unclos provides that if a dispute arises between two state parties that cannot be resolved by negotiation and exchange of views, either of the parties to the dispute can unilaterally institute proceedings before an international court or arbitral tribunal without obtaining the consent of the other party.
BRIEF SUMMARY OF THE PROCEEDINGS
The Philippines initiated the arbitration proceedings on Jan 22, 2013. Although China decided that it would not appear or participate in the proceedings, the arbitration proceeded in its absence in accordance with the provisions of Unclos. After almost three years of proceedings, the five-member tribunal issued its award on jurisdiction on Oct 29 last year. A hearing on the merits of the case was held late last November. The award on the merits was issued on Tuesday. The awards on both jurisdiction and the merits were by a unanimous decision of the five members of the tribunal.
THE ROOT OF THE DISPUTES AT ISSUE BETWEEN THE PARTIES
The tribunal found that some of China's actions in the South China Sea were contrary to its obligations under Unclos and, in some cases, were an infringement of the rights of the Philippines. However, the tribunal noted that as a matter of principle, both China and the Philippines have accepted Unclos and the general obligation to comply with its provisions in good faith.
The tribunal stated that the root of the disputes at issue between the Philippines and China lies in fundamentally different understandings of their respective rights under Unclos in the waters in the South China Sea, and not in any intention by one of the parties to infringe the rights of the other.
It can be argued that this has indeed been the essence of the problem. Although China participated in the nine years of negotiations leading to the adoption of Unclos, and became a party to Unclos in 1996, China has interpreted and applied the provisions of the Unclos in the light of its own historical and cultural traditions.
China seems to have been unable to understand that Unclos was intended to establish a universal body of rules that is to be interpreted and applied by all state parties in the same manner, notwithstanding their historical and cultural traditions.
For example, China did not seem to understand that Unclos provides that coastal states have the sovereign right to explore and exploit all of the living and non-living resources in the 200-nautical-mile exclusive economic zone (EEZ) measured from their mainland coast, and that it was not compatible with the Unclos for China to assert "historic rights" to resources in the EEZ of other states based on its "nine-dash line" map.
HISTORIC RIGHTS AND THE NINE-DASH LINE
China's claim to historic rights within the nine-dash line, within the EEZ of the Philippines, was the major reason the Philippines instituted proceedings. Therefore, it was a major victory for the Philippines when the tribunal ruled that, to the extent that China claimed historic rights to resources in the waters inside its nine-dash line, such rights were extinguished when it ratified Unclos if those waters are now within the EEZs of other coastal states.
DISPUTES ON TERRITORIAL SOVEREIGNTY
The Philippines did not raise any issue with respect to which state had a superior claim to sovereignty over the islands in the South China Sea. This is because an arbitral tribunal established under Unclos can only consider disputes on the interpretation or application of Unclos, and Unclos contains no provisions on how to resolve sovereignty issues.
Therefore, the award of the tribunal does not address the underlying dispute in the South China Sea - the competing claims to sovereignty over the islands.
Further, although the tribunal found that China's claim to historic rights in the nine-dash line is not compatible with Unclos, it did not rule that the nine-dash line per se is illegal or invalid. China is under no obligation to formally denounce the nine-dash line.
The nine-dash line is still relevant because it shows the location of the various islands in the South China Sea over which China claims sovereignty. The difference is that as a party to Unclos, China can claim sovereignty only over those islands that meet the definition of an island in Article 121 of Unclos, that is, naturally formed areas of land surrounded by and above water at high tide.
DISPUTES ON THE STATUS OF REEFS AND THEIR ENTITLEMENT TO MARITIME ZONES
What the Philippines did assert was that there were disputes between China and the Philippines on the status and entitlement to maritime zones of the reefs occupied by China. In its award on jurisdiction, the tribunal held that it could consider these issues without considering who had the better claim to sovereignty over the reefs in question.
The Philippines admitted that several of the reefs occupied by China were "islands" as defined in Article 121 of Unclos because they were naturally formed areas of land surrounded by and above water at high tide. This meant that they were subject to a claim of sovereignty and entitled in principle to maritime zones.
ROCKS VERSUS ISLANDS
However, the Philippines further asserted that none of the islands in Spratlys that were occupied by China was entitled to more than a 12-nautical-mile territorial sea. The Philippines maintained that the islands occupied by China fell within the exception in Paragraph 3 of Article 121, which provides that "rocks which cannot sustain human habitation or economic life of their own are not entitled to an EEZ or continental shelf".
Most observers believed that this was the most difficult issue facing the tribunal. The tribunal examined the language of Article 121(3) in great detail, and in what is perhaps the boldest part of its decision, it ruled that none of the disputed islands in the Spratly Islands is an island entitled to an EEZ and continental shelf of its own.
The tribunal held that even Taiping, the largest natural island that is occupied by Taiwan, is a "rock" that is not entitled to an EEZ or continental shelf of its own because it cannot sustain human habitation or economic life.
SIGNIFICANCE OF DECISION THAT NO ISLANDS ARE ENTITLED TO AN EEZ
The impact of the decision that all of the islands in the Spratlys are rocks entitled to no more than a 12-nautical-mile territorial sea should not be underestimated.
It means that there are no areas of overlapping EEZ claims in the EEZ of the Philippines.
Consequently, the Philippines has the exclusive right to develop the oil and gas resources in Reed Bank, the area off its coast which has the greatest potential for hydrocarbon resources. Exploitation of this area has been held up because China claimed a right to the resources because the area is within its nine-dash line.
This decision of the tribunal is also of great significance to Vietnam, Malaysia, Brunei and Indonesia. Given that the tribunal has ruled that China has no historic rights to resources in the EEZs of other states within the nine-dash line, and that none of the disputed islands is entitled to an EEZ of its own, it means that China has no legal basis under Unclos to claim that it has a right to share the fishing or hydrocarbon resources in the EEZs of the Asean claimants bordering the South China Sea.
LOW-TIDE ELEVATIONS
The tribunal also agreed with the submission of the Philippines that several of the reefs occupied by China were low-tide elevations rather than islands. Consequently, they are not subject to a sovereignty claim unless they are within 12 nautical miles of an island, and they are not entitled to any maritime zones of their own.
The tribunal's decision on Mischief Reef is particularly troublesome for China.
The tribunal ruled that Mischief Reef is a low-tide elevation, not an island, and that it is located within the EEZ of the Philippines. Therefore, under Unclos, the Philippines has jurisdiction and control over the Mischief Reef, and it has the exclusive right to authorise and regulate the construction, operation and use of installations and structures on the reef. Consequently, the tribunal ruled that the installations and structures built by China on Mischief Reef are legally under the jurisdiction and control of the Philippines.
The tribunal also held that the Second Thomas Shoal is a low-tide elevation within the EEZ of the Philippines. This is the reef on which the Philippines intentionally stranded a vessel in order to try to prevent China from occupying it. As a result of the award, this reef is legally under the exclusive jurisdiction of the Philippines, and any actions by China to interfere with the resupply of the vessel would be unlawful.
ISLAND BUILDING AND CONSTRUCTION ACTIVITIES
The award of the tribunal is also important for what it says and does not say regarding China's construction activities (island building) in the Spratly Islands.
First, the tribunal made it clear that China's land reclamation activities were in violation of its obligations to protect and preserve the marine environment, including its obligations to conduct an environmental impact assessment (EIA) for planned activities in accordance with international standards, and to make the results of the EIA available.
Second, the tribunal held that the construction activities were unlawful because they aggravated and extended the ongoing dispute that was before the international tribunal. In addition, China's construction activities destroyed evidence of the natural condition of the features in question, even though the status of such features was a matter pending before the tribunal.
Third, it should be noted that the tribunal did not rule that it was unlawful in principle for China to undertake construction activities on the disputed islands that it occupies.
Also, the tribunal did not discuss whether it was lawful for China to change the status quo in the South China Sea by building airstrips and other facilities on the islands it occupies. There are no provisions in Unclos on these issues, and the Philippines made no argument that the construction activities were in principle contrary to the provisions of Unclos.
Fourth, there is nothing in the decision which would make it unlawful for China to construct military installations on the islands it occupies, with the exception of Mischief Reef.
CONSEQUENCES OF THE AWARD TO STATES BORDERING THE SOUTH CHINA SEA
China's initial reaction to the award has not been unexpected. It has stated that it does not recognise the legitimacy of the award and that the award will be treated as null and void.
In practice, however, the award will be a "game changer". The award has not only clarified in several ways how Unclos applies to the complex disputes in the South China Sea, but it has has also brought home to all concerned the importance of Unclos in establishing a rules-based order for the oceans and seas, including the South China Sea.
The Asean claimants and Indonesia can be expected to strongly support the decision as its reasoning applies equally to their EEZ claims. They will strongly oppose any attempt by China to assert a right to the natural resources within their EEZs on the basis that it has historic rights within the nine-dash line.
CONSEQUENCES FOR THE INTERNATIONAL COMMUNITY
The award ensures that the waters in the South China Sea outside the 12-nautical-mile territorial sea from the islands will be open to all states to exercise freedoms of the high seas, including overflight, navigation and military activities. This will be welcomed in particular by the United States and its allies in the region.
States concerned with the importance of a rules-based order for the oceans will point out that the award is final and binding, and call on China to carry out its activities in accordance with the award. However, such calls will appear hypocritical if those same states do not first reflect on the implications of the award on their own claims and activities.
Observers will be quick to point out that states such as Japan and the United States currently claim an EEZ from islands which according to the tribunal's interpretation of Article 121(3), are rocks entitled to no more than a 12-nautical-mile territorial sea. Also, the United States should refrain from criticising China for not participating in the case and implementing the award until it becomes a party to Unclos and is itself subject to the system of compulsory binding dispute settlement set out in the Unclos.
CONSEQUENCES FOR THE DEVELOPMENT OF THE RULES-BASED LEGAL ORDER IN UNCLOS
Finally, the reasoning in this case is likely to have an impact on the development of a rules-based order for the oceans whether or not it is strictly complied with by the parties in the case. As an authoritative interpretation of Unclos by eminent law of the sea experts, the award will be studied by law students and government legal advisers for years to come.
Robert Beckman is the Head of the Ocean Law & Policy Programme at the NUS Centre for International Law as well as an Associate Professor at the NUS Faculty of Law.
What the tribunal did not rule on is as significant as what it did. It doesn't say whose territorial claims are superior, or that China's nine-dash line claim is illegal per se, or that China's construction of artificial islands is in principle unlawful.
By Robert Beckman, Published The Straits Times, 14 Jul 2016
The final award in the Philippines versus China arbitration was the most anticipated decision of any international court or tribunal in the area of the law of the sea since the entry into force of the 1982 United Nations Convention on the Law of the Sea (Unclos) in 1994.
THE CONTEXT: 1982 UNCLOS
To understand the significance of the award, it must be viewed in the context of the 1982 Unclos. Unclos is generally regarded as one of the major achievements of the United Nations system. It purports to establish in one complex treaty a legal order for the seas and oceans that takes into account the needs and interests of all states by promoting the peaceful uses of the oceans, facilitating international communication through navigation and overflight, establishing rules for allocating and managing the natural resources of the oceans, and establishing rules for protecting and preserving the marine environment.
The 1982 Unclos was negotiated as a "package deal". To obtain rights to explore and exploit resources, coastal states had to accept obligations to protect and preserve the marine environment, and to cooperate to sustainably manage the living resources.
The representatives of states negotiating the Unclos understood that disputes would inevitably arise between state parties on the interpretation and application of its provisions. This is especially so since the negotiators were able to reach a consensus on some controversial issues only by agreeing to "deliberately ambiguous" language.
Also, the negotiators were aware that states would inevitably interpret the provisions in Unclos to maximise their national interests and in the light of their particular cultural and historical circumstances.
Consequently, the drafters included as an integral part of the "package deal" the most complex dispute settlement regime ever devised in an international convention.
When a state becomes a party to Unclos, it agrees in advance to a system of compulsory dispute settlement that can result in a final and binding decision by an international court or arbitral tribunal. In essence, Unclos provides that if a dispute arises between two state parties that cannot be resolved by negotiation and exchange of views, either of the parties to the dispute can unilaterally institute proceedings before an international court or arbitral tribunal without obtaining the consent of the other party.
BRIEF SUMMARY OF THE PROCEEDINGS
The Philippines initiated the arbitration proceedings on Jan 22, 2013. Although China decided that it would not appear or participate in the proceedings, the arbitration proceeded in its absence in accordance with the provisions of Unclos. After almost three years of proceedings, the five-member tribunal issued its award on jurisdiction on Oct 29 last year. A hearing on the merits of the case was held late last November. The award on the merits was issued on Tuesday. The awards on both jurisdiction and the merits were by a unanimous decision of the five members of the tribunal.
THE ROOT OF THE DISPUTES AT ISSUE BETWEEN THE PARTIES
The tribunal found that some of China's actions in the South China Sea were contrary to its obligations under Unclos and, in some cases, were an infringement of the rights of the Philippines. However, the tribunal noted that as a matter of principle, both China and the Philippines have accepted Unclos and the general obligation to comply with its provisions in good faith.
The tribunal stated that the root of the disputes at issue between the Philippines and China lies in fundamentally different understandings of their respective rights under Unclos in the waters in the South China Sea, and not in any intention by one of the parties to infringe the rights of the other.
It can be argued that this has indeed been the essence of the problem. Although China participated in the nine years of negotiations leading to the adoption of Unclos, and became a party to Unclos in 1996, China has interpreted and applied the provisions of the Unclos in the light of its own historical and cultural traditions.
China seems to have been unable to understand that Unclos was intended to establish a universal body of rules that is to be interpreted and applied by all state parties in the same manner, notwithstanding their historical and cultural traditions.
For example, China did not seem to understand that Unclos provides that coastal states have the sovereign right to explore and exploit all of the living and non-living resources in the 200-nautical-mile exclusive economic zone (EEZ) measured from their mainland coast, and that it was not compatible with the Unclos for China to assert "historic rights" to resources in the EEZ of other states based on its "nine-dash line" map.
HISTORIC RIGHTS AND THE NINE-DASH LINE
China's claim to historic rights within the nine-dash line, within the EEZ of the Philippines, was the major reason the Philippines instituted proceedings. Therefore, it was a major victory for the Philippines when the tribunal ruled that, to the extent that China claimed historic rights to resources in the waters inside its nine-dash line, such rights were extinguished when it ratified Unclos if those waters are now within the EEZs of other coastal states.
DISPUTES ON TERRITORIAL SOVEREIGNTY
The Philippines did not raise any issue with respect to which state had a superior claim to sovereignty over the islands in the South China Sea. This is because an arbitral tribunal established under Unclos can only consider disputes on the interpretation or application of Unclos, and Unclos contains no provisions on how to resolve sovereignty issues.
Therefore, the award of the tribunal does not address the underlying dispute in the South China Sea - the competing claims to sovereignty over the islands.
Further, although the tribunal found that China's claim to historic rights in the nine-dash line is not compatible with Unclos, it did not rule that the nine-dash line per se is illegal or invalid. China is under no obligation to formally denounce the nine-dash line.
The nine-dash line is still relevant because it shows the location of the various islands in the South China Sea over which China claims sovereignty. The difference is that as a party to Unclos, China can claim sovereignty only over those islands that meet the definition of an island in Article 121 of Unclos, that is, naturally formed areas of land surrounded by and above water at high tide.
DISPUTES ON THE STATUS OF REEFS AND THEIR ENTITLEMENT TO MARITIME ZONES
What the Philippines did assert was that there were disputes between China and the Philippines on the status and entitlement to maritime zones of the reefs occupied by China. In its award on jurisdiction, the tribunal held that it could consider these issues without considering who had the better claim to sovereignty over the reefs in question.
The Philippines admitted that several of the reefs occupied by China were "islands" as defined in Article 121 of Unclos because they were naturally formed areas of land surrounded by and above water at high tide. This meant that they were subject to a claim of sovereignty and entitled in principle to maritime zones.
ROCKS VERSUS ISLANDS
However, the Philippines further asserted that none of the islands in Spratlys that were occupied by China was entitled to more than a 12-nautical-mile territorial sea. The Philippines maintained that the islands occupied by China fell within the exception in Paragraph 3 of Article 121, which provides that "rocks which cannot sustain human habitation or economic life of their own are not entitled to an EEZ or continental shelf".
Most observers believed that this was the most difficult issue facing the tribunal. The tribunal examined the language of Article 121(3) in great detail, and in what is perhaps the boldest part of its decision, it ruled that none of the disputed islands in the Spratly Islands is an island entitled to an EEZ and continental shelf of its own.
The tribunal held that even Taiping, the largest natural island that is occupied by Taiwan, is a "rock" that is not entitled to an EEZ or continental shelf of its own because it cannot sustain human habitation or economic life.
SIGNIFICANCE OF DECISION THAT NO ISLANDS ARE ENTITLED TO AN EEZ
The impact of the decision that all of the islands in the Spratlys are rocks entitled to no more than a 12-nautical-mile territorial sea should not be underestimated.
It means that there are no areas of overlapping EEZ claims in the EEZ of the Philippines.
Consequently, the Philippines has the exclusive right to develop the oil and gas resources in Reed Bank, the area off its coast which has the greatest potential for hydrocarbon resources. Exploitation of this area has been held up because China claimed a right to the resources because the area is within its nine-dash line.
This decision of the tribunal is also of great significance to Vietnam, Malaysia, Brunei and Indonesia. Given that the tribunal has ruled that China has no historic rights to resources in the EEZs of other states within the nine-dash line, and that none of the disputed islands is entitled to an EEZ of its own, it means that China has no legal basis under Unclos to claim that it has a right to share the fishing or hydrocarbon resources in the EEZs of the Asean claimants bordering the South China Sea.
LOW-TIDE ELEVATIONS
The tribunal also agreed with the submission of the Philippines that several of the reefs occupied by China were low-tide elevations rather than islands. Consequently, they are not subject to a sovereignty claim unless they are within 12 nautical miles of an island, and they are not entitled to any maritime zones of their own.
The tribunal ruled that Mischief Reef is a low-tide elevation, not an island, and that it is located within the EEZ of the Philippines. Therefore, under Unclos, the Philippines has jurisdiction and control over the Mischief Reef, and it has the exclusive right to authorise and regulate the construction, operation and use of installations and structures on the reef. Consequently, the tribunal ruled that the installations and structures built by China on Mischief Reef are legally under the jurisdiction and control of the Philippines.
The tribunal also held that the Second Thomas Shoal is a low-tide elevation within the EEZ of the Philippines. This is the reef on which the Philippines intentionally stranded a vessel in order to try to prevent China from occupying it. As a result of the award, this reef is legally under the exclusive jurisdiction of the Philippines, and any actions by China to interfere with the resupply of the vessel would be unlawful.
ISLAND BUILDING AND CONSTRUCTION ACTIVITIES
The award of the tribunal is also important for what it says and does not say regarding China's construction activities (island building) in the Spratly Islands.
First, the tribunal made it clear that China's land reclamation activities were in violation of its obligations to protect and preserve the marine environment, including its obligations to conduct an environmental impact assessment (EIA) for planned activities in accordance with international standards, and to make the results of the EIA available.
Second, the tribunal held that the construction activities were unlawful because they aggravated and extended the ongoing dispute that was before the international tribunal. In addition, China's construction activities destroyed evidence of the natural condition of the features in question, even though the status of such features was a matter pending before the tribunal.
Third, it should be noted that the tribunal did not rule that it was unlawful in principle for China to undertake construction activities on the disputed islands that it occupies.
Also, the tribunal did not discuss whether it was lawful for China to change the status quo in the South China Sea by building airstrips and other facilities on the islands it occupies. There are no provisions in Unclos on these issues, and the Philippines made no argument that the construction activities were in principle contrary to the provisions of Unclos.
Fourth, there is nothing in the decision which would make it unlawful for China to construct military installations on the islands it occupies, with the exception of Mischief Reef.
CONSEQUENCES OF THE AWARD TO STATES BORDERING THE SOUTH CHINA SEA
China's initial reaction to the award has not been unexpected. It has stated that it does not recognise the legitimacy of the award and that the award will be treated as null and void.
In practice, however, the award will be a "game changer". The award has not only clarified in several ways how Unclos applies to the complex disputes in the South China Sea, but it has has also brought home to all concerned the importance of Unclos in establishing a rules-based order for the oceans and seas, including the South China Sea.
The Asean claimants and Indonesia can be expected to strongly support the decision as its reasoning applies equally to their EEZ claims. They will strongly oppose any attempt by China to assert a right to the natural resources within their EEZs on the basis that it has historic rights within the nine-dash line.
CONSEQUENCES FOR THE INTERNATIONAL COMMUNITY
The award ensures that the waters in the South China Sea outside the 12-nautical-mile territorial sea from the islands will be open to all states to exercise freedoms of the high seas, including overflight, navigation and military activities. This will be welcomed in particular by the United States and its allies in the region.
States concerned with the importance of a rules-based order for the oceans will point out that the award is final and binding, and call on China to carry out its activities in accordance with the award. However, such calls will appear hypocritical if those same states do not first reflect on the implications of the award on their own claims and activities.
Observers will be quick to point out that states such as Japan and the United States currently claim an EEZ from islands which according to the tribunal's interpretation of Article 121(3), are rocks entitled to no more than a 12-nautical-mile territorial sea. Also, the United States should refrain from criticising China for not participating in the case and implementing the award until it becomes a party to Unclos and is itself subject to the system of compulsory binding dispute settlement set out in the Unclos.
CONSEQUENCES FOR THE DEVELOPMENT OF THE RULES-BASED LEGAL ORDER IN UNCLOS
Finally, the reasoning in this case is likely to have an impact on the development of a rules-based order for the oceans whether or not it is strictly complied with by the parties in the case. As an authoritative interpretation of Unclos by eminent law of the sea experts, the award will be studied by law students and government legal advisers for years to come.
Robert Beckman is the Head of the Ocean Law & Policy Programme at the NUS Centre for International Law as well as an Associate Professor at the NUS Faculty of Law.
Heresy to say great powers don't bow to tribunals on Law of the Sea?
By Graham Allison, Published The Straits Times, 16 Jul 2016
On Tuesday, an Arbitral Tribunal set up under the United Nations Convention on the Law of the Sea (Unclos) issued its award in the Philippines' case against China's maritime claims in the South China Sea.
China immediately rejected the ruling out of hand as a "political farce" that is "nothing more than a piece of paper". Amid the chorus castigating China for rejecting an international tribunal's ruling, it may seem heretical to ask whether China's behaviour in this case represents a significant departure from prior practice by other major powers - or alternatively, if it essentially follows in others' footsteps.
Before coming to a judgment on that issue, we should answer two even more heretical questions: First, has any permanent member of the UN Security Council ever complied with a ruling by a UN tribunal on an issue involving the Law of the Sea?
Second, have any of these great powers ever accepted any international court’s ruling when (in their view) it infringed upon their sovereignty or national security interests? Simply stated, the answers are no and no.
From the day the Philippines went to court, China has argued that the Arbitral Tribunal has no legitimate jurisdiction on this issue since it concerns "sovereignty" - which the text of the Law of the Sea treaty explicitly prohibits tribunals from addressing.
When the Arbitral Tribunal rejected China's objection, Beijing refused to participate in its hearings and made it clear that it would ignore the former's ruling. The United States and others have criticised Beijing for taking this stance. But again, if we ask how other permanent members of the Security Council have acted in similar circumstances, the answer will not be one we like.
When the Netherlands sued Russia after the latter's navy boarded and detained the crew of a Dutch vessel in waters off the Russian coast in 2013, Moscow asserted that the court, in this case the International Tribunal for the Law of the Sea, had no jurisdiction in the matter and refused to participate in the hearings. It also ignored the tribunal's order that the crew be released while the dispute was being resolved.
Later, when an Arbitral Tribunal set up in the same way as that in Philippines versus China ruled that Russia had violated the Law of the Sea and ordered Moscow to pay the Netherlands compensation, Russia refused. Anticipating the court's ruling in the case brought by the Philippines, then British Prime Minister David Cameron proclaimed: "We want to encourage China to be part of that rules-based world. We want to encourage everyone to abide by these adjudications."
Perhaps he had forgotten that just last year, an Arbitral Tribunal ruled for Mauritius and against Britain because the latter, it said, violated the Law of the Sea by unilaterally establishing a Marine Protected Area in the Chagos Islands. The British government disregarded the ruling, and the Marine Protected Area remains in place today.
The United States has never been sued under the Law of the Sea because - unlike China - Washington has not ratified the international agreement on it known as Unclos, and is thus not bound by its rules. Expect Chinese commentators to make more of this point in the mutual recriminations we are now seeing following the court's announcement.
The closest analogue to the Philippines case involving the US arose in the 1980s, when Nicaragua sued Washington at the International Court of Justice (ICJ) for mining its harbours. The US made the same argument as China and said the ICJ had no authority to hear Nicaragua's case. When the court rejected that claim, the US not only refused to participate in subsequent proceedings, but also denied the court's jurisdiction on any future case involving the US, unless Washington explicitly made an exception and asked the court to hear a case.
If China followed that precedent, it could withdraw from the Law of the Sea treaty altogether - joining the US as one of the world's only nations not party to the agreement.
In the Nicaragua case, when the court found in favour of Nicaragua and ordered the US to pay reparations, the US refused. When the UN Security Council tried to pass resolutions ordering it to comply with the court's ruling, the US used its veto power to defeat six resolutions in a row. Then US Ambassador to the UN Jeane Kirkpatrick aptly summed up Washington's view of the matter when she dismissed the court as a "semi-legal, semi-juridical, semi- political body, which nations sometimes accept and sometimes don't".
Observing what permanent members of the Security Council do, as opposed to what they say, it is hard to disagree with realists' claims that the Law of the Sea tribunals, the International Court of Justice and the International Criminal Court are only for small powers. Great powers do not recognise the jurisdiction of these courts – except on a case-by-case basis when they judge it in their interest to do so.
Thucydides' summary of the Melian mantra - "The strong do as they will; the weak suffer as they must" - may exaggerate. But with the tribunal's ruling this week against China, it is no surprise that Beijing has chosen to respond just as other great powers have traditionally done.
The writer is director of Harvard Kennedy School's Belfer Centre for Science and International Affairs and author of the forthcoming book, Destined For War: America, China And Thucydides' Trap.
A version of this commentary first appeared in The Diplomat, an international current affairs magazine on the Asia-Pacific region.
By Graham Allison, Published The Straits Times, 16 Jul 2016
On Tuesday, an Arbitral Tribunal set up under the United Nations Convention on the Law of the Sea (Unclos) issued its award in the Philippines' case against China's maritime claims in the South China Sea.
China immediately rejected the ruling out of hand as a "political farce" that is "nothing more than a piece of paper". Amid the chorus castigating China for rejecting an international tribunal's ruling, it may seem heretical to ask whether China's behaviour in this case represents a significant departure from prior practice by other major powers - or alternatively, if it essentially follows in others' footsteps.
Before coming to a judgment on that issue, we should answer two even more heretical questions: First, has any permanent member of the UN Security Council ever complied with a ruling by a UN tribunal on an issue involving the Law of the Sea?
Second, have any of these great powers ever accepted any international court’s ruling when (in their view) it infringed upon their sovereignty or national security interests? Simply stated, the answers are no and no.
From the day the Philippines went to court, China has argued that the Arbitral Tribunal has no legitimate jurisdiction on this issue since it concerns "sovereignty" - which the text of the Law of the Sea treaty explicitly prohibits tribunals from addressing.
When the Arbitral Tribunal rejected China's objection, Beijing refused to participate in its hearings and made it clear that it would ignore the former's ruling. The United States and others have criticised Beijing for taking this stance. But again, if we ask how other permanent members of the Security Council have acted in similar circumstances, the answer will not be one we like.
When the Netherlands sued Russia after the latter's navy boarded and detained the crew of a Dutch vessel in waters off the Russian coast in 2013, Moscow asserted that the court, in this case the International Tribunal for the Law of the Sea, had no jurisdiction in the matter and refused to participate in the hearings. It also ignored the tribunal's order that the crew be released while the dispute was being resolved.
Later, when an Arbitral Tribunal set up in the same way as that in Philippines versus China ruled that Russia had violated the Law of the Sea and ordered Moscow to pay the Netherlands compensation, Russia refused. Anticipating the court's ruling in the case brought by the Philippines, then British Prime Minister David Cameron proclaimed: "We want to encourage China to be part of that rules-based world. We want to encourage everyone to abide by these adjudications."
Perhaps he had forgotten that just last year, an Arbitral Tribunal ruled for Mauritius and against Britain because the latter, it said, violated the Law of the Sea by unilaterally establishing a Marine Protected Area in the Chagos Islands. The British government disregarded the ruling, and the Marine Protected Area remains in place today.
The United States has never been sued under the Law of the Sea because - unlike China - Washington has not ratified the international agreement on it known as Unclos, and is thus not bound by its rules. Expect Chinese commentators to make more of this point in the mutual recriminations we are now seeing following the court's announcement.
The closest analogue to the Philippines case involving the US arose in the 1980s, when Nicaragua sued Washington at the International Court of Justice (ICJ) for mining its harbours. The US made the same argument as China and said the ICJ had no authority to hear Nicaragua's case. When the court rejected that claim, the US not only refused to participate in subsequent proceedings, but also denied the court's jurisdiction on any future case involving the US, unless Washington explicitly made an exception and asked the court to hear a case.
If China followed that precedent, it could withdraw from the Law of the Sea treaty altogether - joining the US as one of the world's only nations not party to the agreement.
In the Nicaragua case, when the court found in favour of Nicaragua and ordered the US to pay reparations, the US refused. When the UN Security Council tried to pass resolutions ordering it to comply with the court's ruling, the US used its veto power to defeat six resolutions in a row. Then US Ambassador to the UN Jeane Kirkpatrick aptly summed up Washington's view of the matter when she dismissed the court as a "semi-legal, semi-juridical, semi- political body, which nations sometimes accept and sometimes don't".
Observing what permanent members of the Security Council do, as opposed to what they say, it is hard to disagree with realists' claims that the Law of the Sea tribunals, the International Court of Justice and the International Criminal Court are only for small powers. Great powers do not recognise the jurisdiction of these courts – except on a case-by-case basis when they judge it in their interest to do so.
Thucydides' summary of the Melian mantra - "The strong do as they will; the weak suffer as they must" - may exaggerate. But with the tribunal's ruling this week against China, it is no surprise that Beijing has chosen to respond just as other great powers have traditionally done.
The writer is director of Harvard Kennedy School's Belfer Centre for Science and International Affairs and author of the forthcoming book, Destined For War: America, China And Thucydides' Trap.
A version of this commentary first appeared in The Diplomat, an international current affairs magazine on the Asia-Pacific region.
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