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An Uncertain Future: Impact of The Hague Ruling on South China Sea Maritime Sovereignty

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By Christopher Merritt
Faculty Member, School of Security and Global Studies at American Military University

Last week, the Permanent Court of Arbitration at The Hague ruled in favor of the Philippines on the contentious issue of maritime sovereignty in the South China Sea (SCS). These findings were not surprising. Many scholars and experts on maritime law speculated that the tribunal would find in favor of the Philippines, based on rules outlined in the 1982 United Nations Convention on Law of the Seas (UNCLOS).

Court’s Decision Implies That the Philippines, Not China, Has Legal Rights in Disputed Areas

The tribunal did not grant sovereignty to the Philippines or China over the disputed seas. Rather, the court articulated its jurisdiction under UNCLOS and interpreted that China has no maritime features (i.e. an island) within 200 nautical miles of the disputed waters. No maritime feature claimed by China has the capacity to generate an entitlement to an exclusive economic zone or continental shelf.

In other words, there is no legal basis for claiming submerged banks, low tide elevations and rocks as sovereign territory because they are unable to sustain human habitation or economic life on their own. Based on the UNCLOS Treaty, land features are used as a basis for maritime boundaries, not historic claims. China, therefore, does not have a legal basis (under UNCLOS) for its historic claim to the disputed areas.

By default, this ruling supports the Philippine claim that the disputed land features (submerged banks and low tide elevations) should fall within the Philippines’ 200-mile Economic Exclusion Zone (EEZ) according to UNCLOS. In economic terms, the Philippines has exclusive authority to protect the marine resources and benefit from the waters within the EEZ for fishing and energy extraction.

Southeast Asian Maritime Disputes Have Historic Precedent

Disputes over maritime territory in Southeast Asia are not new. Currently, there are other unresolved maritime boundary disputes for nations in that region, including disagreements between Malaysia, Indonesia and the Philippines in the Celebes Sea. Vietnam, Thailand and Cambodia also have unresolved claims in the Gulf of Thailand.

Disputes in the late 1990s between the Philippines and China over Mischief Reef and between China and Vietnam over the delimitation line in the Gulf of Tonkin resulted in the signing of the 2002 Declaration of Conduct (DOC) of Parties in the SCS. The DOC enhanced stability and security in the SCS, allowing for the national oil companies of the claimant states to enter into joint undersea exploration endeavors.

In 2009, the dynamics between Southeast Asian countries changed when Vietnam and Malaysia made submissions to exploit energy reserves in areas beyond the 200 nautical mile EEZs for each country. China responded by submitting a petition to the U.N. that included the “nine-dash line,” a demarcation line indicating that most of the waters in the South China Sea were China’s, based on historic claims.

China subsequently took steps to establish legitimacy for its claims, including the interdiction of a Philippine seismic survey ship off the Reed Bank in 2011 by China Maritime Surveillance vessels. China then protested the public auction of petroleum concession blocks by the Philippines.

Tensions continued to rise throughout 2012, including a standoff over control of the Scarborough Shoal. To resolve the escalating dispute, the Philippines instituted arbitral proceedings against China on January 22, 2013 with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea (also known as the South China Sea).

On February 19, 2013, China presented a Note Verbale to the Philippines. In this diplomatic communication, China rejected and returned the Philippines’ notification. China also did not recognize the legitimacy of the Permanent Court of Arbitration in this dispute and did not send representatives or evidence to counter the Philippine claims.

Impact of The Hague’s Decision on China

Now that the tribunal has awarded a favorable ruling to the Philippines in this dispute, China is in a conundrum. Does Beijing recognize and accept the findings of the international community through UNCLOS (which both China and the Philippines are parties)? Or will China ignore the ruling and enforce sovereignty, despite regional and international protests?

Initial indications are that China will take a hard stance on the matter and will not enter into talks with the Philippines. Still, the ruling provides a foundation for resolving other ongoing disputes in the region, not necessarily with China, but between other claimant states.

What Will Happen to Southeast Asian Seas in the Future?

The future continues to remain uncertain, as the economic and political stakes remain high. Defining and agreeing upon maritime boundaries will have a long-lasting effect on the national and regional economies for nations in Southeast Asia.

This legal decision will influence fishing and offshore energy in the region. It will also influence defense and security spending, as nations structure and allocate resources for their naval forces and maritime law enforcement organizations. Accordingly, maritime security forces will be better able to effectively patrol their waters and ensure freedom of navigation once the maritime boundaries are clarified and agreed upon.

These maritime activities will depend on whether the ongoing disputes are resolved peacefully and in accordance with UNCLOS. The ruling at The Hague last week is a positive step in that direction.

About the Author

Dr. Christopher Merritt is an associate professor in the Security and Global Studies School at American Military University, and has taught courses in public administration, administrative theory, research methods, critical analysis and intelligence. His academic credentials include a B.S.B.A. in international business and an M.B.A. in management from Hawaii Pacific University, as well as a doctoral degree in education from the University of Southern California.

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