China's claims in South China Sea are

invalid, tribunal rules, in victory for the

Philippines
Delivering a sweeping moral victory for the Philippines, an international tribunal ruled Tuesday
that Chinas claims to historic rights across a vast expanse of the South China Sea are invalid.
The Permanent Court of Arbitration in the Hague, Netherlands, also said that no land
formations in the South China Sea whoever controls them are big enough to warrant
exclusive maritime zones beyond 12 miles.
In recent years, China has asserted what it views as territorial rights in the sea by building up
remote reefs into much larger land forms. Its fishing fleets have used those assertions to move
into areas claimed by other countries, including the Philippines.
The five-judge panel said Chinas island-building activities violated the U.N. Convention on the
Law of the Sea, as did its moves to deny Filipinos access to their traditional fishing grounds. The
panel also rapped China for environmental destruction it said was a breach of UNCLOS.
There is no way for the Philippines to immediately enforce the ruling, and it is not clear what
practical effect it might have. Experts said it could force Manila and Beijing back to the
negotiating table or prompt other countries to take similar legal action.
In addition to China and the Philippines, Taiwan, Vietnam, Malaysia and Brunei have various
claims in the area, a vast expanse rich in fish as well as other natural resources, including oil and
gas.
The panel was not deciding directly on matters of sovereignty in the South China Sea and which
countries should control what reefs, shoals and other outcroppings in the region. Instead, the
court was ruling on questions including whether a number of disputed land masses in the area
should be considered islands, rocks or low tide elevations.
Those designations are important because under UNCLOS, they affect what kind of territorial or
economic rights go with the features.
For example, if something is considered an island capable in its natural form of sustaining human
habitation, the country controlling it would be entitled to 12 nautical miles of territorial waters

and a 200-mile economic exclusion zone. But if it is a low tide elevation, which is submerged
during high tide, its entitled to no territorial waters.
The court ruled that no features in the area were, in their natural state, anything bigger than
rocks, and thus none were entitled to maritime zones bigger than 12 miles.
Although the ruling was a win for Manila, which brought the case in 2013, it was unclear what
would happen next because Beijing boycotted the proceedings and said it would ignore the
ruling. Both China and the Philippines are signatories to UNCLOS, but the tribunal has no
powers of enforcement.
The case does have precedents. In the 1980s, the United States fought such a case brought by
Nicaragua, objecting to an international courts jurisdiction. But after the court ruled it had
jurisdiction and found in Nicaraguas favor, Washington agreed to settle the matter. A more
recent case saw Mauritius take the United Kingdom to a tribunal and win, even though London
objected to the proceedings. The U.K. since has indicated it is open to negotiations with
Mauritius.
Philippine Foreign Secretary Perfecto Yasay hailed the ruling a milestone decision and said his
governments experts were studying the ruling. In the meantime, we call on all those concerned
to exercise restraint and sobriety, he said.
Philippine President Rodrigo Duterte called a Cabinet meeting Tuesday evening after the
decision was released.
Chinas Foreign Ministry denounced the ruling. China solemnly declares that the award is null
and void and has no binding force. China neither accepts nor recognizes it, the ministry said in a
statement. It said Manilas unilateral initiation of arbitration manifested bad faith, and it
called the tribunal unjust and unlawful.
The Peoples Daily, the official Communist Party mouthpiece, quoted President Xi Jinping as
saying Tuesday that the islands in the South China sea had been part of the territory of China
since ancient times and that its maritime rights are not influenced by the verdict under any
circumstances.
But Paul Reichler, lead counsel of the Philippines legal team, said the decision benefited not
only the Philippines but also other states affected by Chinas sweeping claims in the region.
Reichler, from the U.S.-based firm of Foley Hoag, said it was now up to these neighboring states,
such as Malaysia, Vietnam and Indonesia, to vigorously assert their rights.

While Chinas rhetoric has been aimed at intimidating its neighbors, he said, you may see a
different response from China in six months, a year or two years if other countries follow
Manilas lead and push back.
The case was decided by a five-judge panel with members from Ghana, France, Poland, the
Netherlands and Germany.
China said the dispute was, at its heart, about sovereignty a question beyond the purview of
the tribunal and therefore refused to take part.
At the center of the fight is what Beijing calls the nine-dash line, a U-shaped area dipping far
off the mainlands southern coast, sweeping east of Vietnam, down near Malaysia and Brunei,
and then looping back up west of the main Philippine islands. The loop encompasses the Paracel
and Spratly islands and Scarborough Shoal.
In the past few years, Beijing has engaged in massive engineering projects inside this line,
turning formerly small reefs into land masses large enough to host landing strips and other
facilities.
The Philippines is worried that China has been creating new facts on the ground and eventually
will assert full sovereignty and control over all the land, water, seabed, atolls and shoals within
that nine-dash line.
Despite the ruling, the Philippines, its allies in Washington and other Southeast Asian states may
find it hard to reduce Chinas presence in the South China Sea, experts said.
Possession is 9/10 of the law, and it will be difficult to get China to relinquish control of any of
the facilities it has established, said Eric Shimp, a trade and regulatory policy advisor with the
law firm Alston & Bird. It might be best to think of this as the beginning of a prolonged
negotiation phase.
John Kirby, a U.S. State Department spokesman, called the decision an important contribution
to the shared goal of a peaceful resolution to disputes in the South China Sea.
The United States expresses its hope and expectation that both parties will comply with their
obligations.
China has called for questions of sovereignty to be decided in one-on-one talks with each of the
nations that have claims in the region. Unless sovereignty over those reefs and shoals is first
determined, China contends, the issue of who may exercise the maritime rights and entitlements
around them could not be resolved.

Summarizing its decision in a statement, the tribunal said while Chinese navigators and
fishermen ... had historically made use of the islands in the South China Sea, there was no
evidence that China had historically exercised exclusive control over the waters or their
resources.
The court added that even if China had such rights, they were essentially extinguished when
it signed on to UNCLOS.
In another blow to Beijing, the tribunal concluded that none of the Spratly Islands is in its
natural state capable of supporting human habitation. Therefore, the tribunal said, none of the
features was entitled to a 200-mile economic exclusion zone. Only in such zones are countries
entitled to build artificial islands.
Furthermore, the tribunal found that certain areas in the South China Sea are within the
exclusive economic zone of the Philippines.
Based on that finding, the tribunal ruled that China had violated the Philippines sovereign rights
in its exclusive economic zone. Among the violations, it said, were interfering with Philippine
fishing and petroleum exploration, constructing artificial islands and failing to prevent Chinese
fishermen from fishing in the zone.
And the court said Chinas construction of artificial islands on seven outcroppings in the Spratly
Islands had caused severe harm to the coral reef environment and violated its obligation to
preserve and protect fragile ecosystems.
It quoted Kent Carpenter, a biologist at Old Dominion University in Norfolk, Va., as saying that
Chinese activity in the South China Sea constitutes the most rapid nearly permanent loss of
coral reef area ever caused by human activity.
The panel said, Chinese authorities were aware that Chinese fishermen have harvested
endangered sea turtles, coral, and giant clams on a substantial scale in the South China Sea.
The tribunal also scolded China for its large-scale land reclamation and construction of artificial
islands, finding it incompatible with the obligations on a state during dispute resolution
proceedings, insofar as China has inflicted irreparable harm to the marine environment, built a
large artificial island in the Philippines exclusive economic zone, and destroyed evidence of the
natural condition of features in the South China Sea that formed part of the parties dispute.
The panel said that because China had conducted such extensive artificial expansion of reefs, it
had to consult historical materials to determine their natural conditions.

Lawrence Martin, another member of the Philippines legal team, said the tribunals ruling on the
environmental questions was significant.
This is the first time that an international court or tribunal has put teeth in
[UNCLOS] provisions relating to environmental protection, he said. States should be on notice
that they can expect to be held to their obligation to protect and preserve the marine environment
in the worlds oceans and seas.

The Hague Tribunals South China Sea Ruling: Empty Provocation or Slow-Burning
Influence?

Last months ruling by a tribunal at the Permanent Court of Arbitration (PCA) on the dispute
brought by the Philippines against China has earned its place in maritime legal annals. Its
precedent is likely to be felt beyond the South China Sea, but whether it will influence China is
open to question.
Sweeping Victory
Unlike previous territorial disputes put before the International Tribunal for the Law of the Sea
or International Court of Justice in The Hague, this tribunal did not adjudicate on sovereignty.
That would have required both parties agreement. Furthermore, Chinas reservations after
ratification of the United Nations Convention on the Law of the Sea (UNCLOS) against
compulsory dispute settlement under the Convention being binding effectively precluded such a
direct approach. The Philippines was able to seek arbitration by focusing its case on the legal
status of disputed maritime features, rather than a determination on who owns what. On these
more limited terms, the Philippines obtained a sweeping victory, with the panel finding
unanimously in its favor on almost all fifteen submissions.
The panel found that Chinas claims of historic rights within the nine-dash line, which Beijing
uses to demarcate its claims in the South China Sea, were without legal foundation. The panel
also concluded that Beijings activities within the Philippines two-hundred-nautical-mile
exclusive economic zone (EEZ), such as illegal fishing and environmentally ruinous artificial
island construction, infringed on Manilas sovereign rights.
No Islands in the Spratlys

While these aspects of the ruling garnered headlines, the boldest implications flow from the
judges opinion that none of the maritime features in the Spratly Islands are entitled to maritime
zones beyond twelve nautical miles. UNCLOS accords the full suite of maritime jurisdiction
privileges (territorial sea, EEZ, and continental shelf rights) to islands. Rocks, however, are only
entitled to twelve nautical miles of territorial sea, and freestanding low-tide elevations have no
jurisdictional entitlement at all.
The tribunal ruled that the Spratly Islands are not islands in the legal sense, but rather, rocks or
low-tide elevations. This includes the aptly named Mischief Reef, a submerged feature that
China has occupied since 1995; it is one of seven features upon which Beijing has heaped
thousands of tons of sand and concrete since the case was lodged in 2013. Although Mischief
Reef now accommodates a military-grade runway and port facilities, the ruling is unambiguous
that it falls within the Philippine EEZ. This means China is in a state of unlawful occupation.
The implications of the ruling are less clear for Scarborough Shoal, an isolated feature several
hundred miles northeast of the Spratly Islands that is much closer to Manila. It was declared a
rock above water at high-tide and therefore entitled to a territorial sea. Based on the tribunals
ruling, the shoal is wholly within the Philippines EEZ. While it is unoccupied, it has been under
de facto Chinese control since 2012, a highly unusual situation.
Vietnam and other Southeast Asian countries were not parties to the arbitration, but their
sovereign EEZ rights in the South China Sea have been bolstered by the ruling. This includes
Indonesia and Malaysia, which have recently experienced aggressive encroachment into portions
of their EEZs by Chinese fishing and maritime law-enforcement vessels in areas Beijing claims
as traditional fishing grounds.
China can no longer justify such claims with reference to UNCLOS. This affirmation of
Southeast Asian countries land-based maritime resource rights in the South China Sea reflects
the geographical fact that their coastlines are much closer to the disputed area than Chinas.
Removing the Spratlys from the jurisdictional picture beyond a handful of enclaved territorial
seas potentially eases the path towards a cooperative high-seas resource-sharing solution in the
future. Getting there, however, will still be very difficult.
An Overall Verdict?
The legal picture is one thing, but strategic realities exist on a different plane.
One month on, is it possible to pass an overall verdict on this groundbreaking, island-diminishing
case? It is probably too early to tell. It has always been difficult to quantify impact in the slowburning world of international law, even though the arbitration is considered final and legally
binding on China.

Realist commentators marvel at the Philippiness pluck in attempting to level the asymmetrical
playing field in the South China Sea, but are skeptical that China will bend. Where big powers
are concerned, might trumps right. Without an enforcement mechanism, the tribunals ruling is
destined to be ignored, or worse still, constitute an empty provocation to a vengeful Beijing bent
on turning the South China Sea into a Chinese lake, according to this point of view.
Nonetheless, the Philippines is currently enjoying calm weather at the eye of the South China
Sea storm. While China has directed invective at supporters of the tribunal ruling, including
Australia, the new Philippine government of Rodrigo Duterte has been spared the worst. Thus far
Manila has held its post-tribunal-ruling cards closely, avoiding the twin pitfalls of hubris or
submission to China. One can even imagine the basis for a bilateral grand bargain with Beijing,
including a swap of Scarborough Shoal for, say, Second Thomas Shoal. But Philippine policy
under Duterte remains unpredictable, with the potential to undercut the effect of the tribunals
ruling.
Some have questioned the importance of the ruling by suggesting that the tribunal has a lower
status than that of international courts, such as the International Tribunal on the Law of the Sea.
The judges have even been criticized for failing to show sufficient political sensitivity to the
implications of their ruling.
International maritime lawyers, almost by definition liberal institutionalists, are more persuaded
that the tribunals ruling could be a game changer. Some point to a record of great-power
compliance with international court decisions, even in cases where the verdict was initially
contested. The influence of international law in shaping norms should not be ignored. However,
the impact is not always felt immediately, a point worth stressing in the age of instant analysis
and event fatigue.
Regional Reactions
China issued a position paper in 2014 preemptively rejecting arbitration, so its public tantrum
following the ruling was predictable. Taiwans negative reaction, however, is worthy of attention
as a control group from which to gauge Chinas reactions. Unlike China, Taiwan is not a party
to UNCLOS, nor is it bound by the tribunals ruling. But the Republic of Chinas 1940s-era ninedash-line map is the precursor and mirror image of Beijings claims.
Taiwans disappointment springs from the tribunals rejection of island status for Itu Aba, the
largest naturally formed feature in the Spratly Islands and a remote Taiwanese outpost. Taiwans
rejection of the ruling is not surprising. Since the tribunals ruling does not impinge on
sovereignty claims, once the disappointment of Itu Abas classification wears off, scope remains
for Taiwan to change its position. A claim based on newly clarified maritime features in the
South China Sea would allow Taipei to distinguish itself from Beijings dubious attachment to

the nine-dash line, moving it closer to conformity with international law without having to
renounce claims of sovereignty.
Beijing maintained a frosty attitude throughout the tribunal proceedings while attempting to
enlist a motley coalition of supposedly supportive states. Since the ruling was released on July
12, China has shifted tack, aiming to splinter international support for the tribunals award.
The Association of Southeast Asian Nations (ASEAN) has borne the brunt of these wedgedriving efforts. Cambodia is widely perceived to be acting at Beijings behest as Southeast Asias
chief spoiler, vetoing overt references to the tribunals ruling in the various communiqus from
ASEANs recent multilateral summits. Chinese pressure appears to have borne neutralizing fruit
more widely among ASEANs membership. Within ASEAN, apart from the Philippines itself,
Vietnam alone endorsed the ruling. If Vietnamese fishermen are subjected to physical
harassment, Hanoi could launch its own legal case against China, buoyed by the Philippine
precedent. But it will take a significant incident to trigger such an action, such as another oil rig
deployment deep into disputed waters.
China was also suspected of applying a hidden hand to water down an EU statement on the
ruling. In fact, to date, no European state has backed the ruling as binding.

Hardening Trend
While Beijing has waged a war of words since the tribunal ruling was released, it didnt
immediately step up military action in the South China Sea. Although this appears to be
changing, with Chinese Air Force combat patrols flying over the Spratly Islands and
Scarborough Shoal and a planned joint exercise with Russia scheduled for the South China Sea
in September, the epicenter of Chinas maritime aggressiveness appears to have reverted for now
to the East China Sea.
Recent statements from the Peoples Liberation Army leadership confirm a hardening trend,
something that President Xi Jinping may have instrumental reasons for supporting.
However, based on Beijings own post-ruling pronouncements, there is still a possibility that
China will attenuate its future claims. Since the tribunal did not rule on any questions of
sovereignty, Beijing could even continue to use the nine-dash line as a cartographical shorthand
for its claims based on high-tide features without relinquishing its territorial claims within the
Spratlys. But that depends on China living up to its vaunted long view.
Policy Implications

Next steps in moving forward from the ruling lie squarely with China and the Philippines. Much
will depend on the progress of their bilateral relations and potential negotiations.
External parties with an interest in the region, including the United States, should focus on
fostering cooperation. Directing policy and capacity-building efforts toward fisheries protection
and conservation in the South China Sea would be consistent with the tribunals findings and
could draw on a broad coalition of actors, including environmental groups that have yet to show
much interest in the sea. This approach likely has the best prospects for rallying wider support
within ASEAN especially Indonesia, given the priority it accords to thwarting illegal fishing.
This could extend to impromptu or sideline discussions at the upcoming Group of Twenty
summit in Beijing, although China is widely expected to block any mention of the South China
Sea in the summit's communiqus.
One month on, Chinas hardline reaction and successful splintering efforts have taken off the
initial shine from the Philippiness legal triumph in The Hague. The leadership change in the
Philippines has injected a wild card into the mix. However, it is too early to discount that the
award will have a moderating influence on Chinas claims. Hard-line statements out of China
need to be scrutinized for evidence of subtle changes in the weeks and months to come.
Global Memos are briefs by the Council of Councils that gather opinions from global experts on
major international developments.

How the Philippines Can Enforce the South China Sea Verdict

The South China Sea can never become a Chinese lake as China
intended under its nine-dash-line claim
The historic ruling of an international tribunal in the Philippines v. China arbitration clarifies
with finality the South China Sea maritime zones to which the Philippines and China are entitled
under the United Nations Convention on the Law of the Sea (Unclos). The ruling also clarifies
the use by other states of the waters of the sea.
The ruling strikes down as illegal Chinas nine-dash line as a claim to nearly 90% of the waters
of the sea. The result is that some 25% of the waters are high seas, found in the seas center. High
seas, where there is freedom of navigation and overflight for civilian and military vessels and
aircraft of all nations, belong to mankind.
The illegality of the nine-dash line also affirms that around the high seas are the exclusive
economic zones (EEZs) of coastal states: the Philippines, Malaysia, Brunei, Indonesia, Vietnam

and China. The prevailing view, adhered to by an overwhelming majority of states, is that within
the EEZs there is also freedom of navigation and overflight for civilian and military vessels and
aircraft. No permission is required from a coastal state for the vessels and aircraft of other states
to sail or fly there. China belongs to a small minority of states that hold the opposite view, that
foreign military vessels and aircraft must secure the permission of the coastal state before sailing
or flying in that states EEZ.
Who will enforce the parts of the ruling affirming the existence of the high seas and EEZs?
While there is no world policeman to do so, the worlds naval powers, led by the U.S., have
declared that they will sail and fly in the high seas and EEZs of the South China Sea to assert
freedom of navigation and overflight for their military and civilian vessels and aircraft. Since
China cannot prevent the worlds naval powers from asserting such freedom of navigation and
overflight, an important part of the ruling will definitely be enforced. The South China Sea can
never become a Chinese lake as China intended under its nine-dash-line claim.
The illegality of the nine-dash line also means that it cant overlap with the EEZ of the
Philippines. Any overlap could only come from maritime zones emanating from geologic
featuresactual land territoriesclaimed by China. The ruling declared that not a single
geologic feature in the entire Spratly archipelago is entitled to a 200-mile EEZ, not even Itu Aba,
the largest feature in the Spratlys. It declared that some features are uninhabitable natural rocks
entitled only to 12-mile territorial seas. The ruling also held that Scarborough Shoal is entitled
only to a 12-mile territorial sea.
The result is that only two rocks controlled by China, McKennan Reef and Scarborough Shoal,
are within the Philippine EEZ. These two features are entitled only to a 12-mile territorial sea.
Thus the entire Philippine EEZ in the South China Seaestimated at 381,000 square kilometers,
larger than the total land territory of the Philippinesis free from any overlapping claim from
China, except for the two small 12-mile territorial seas of McKennan Reef and Scarborough
Shoal.
How can the Philippines enforce its exclusive right to exploit the natural resources in its EEZ if
China rejects the ruling? Again, there is no world police, but the Philippines is not helpless.
If a Chinese oil company brings a gas platform to Reed Bank, within the Philippine EEZ, to
extract gas, the Philippines can sue the company in a state where the company has assets, like
Canada, which is a member of Unclos. The Philippines can show the Canadian court the ruling
that the gas in the Reed Bank belongs to the Philippines. The Philippines can ask the Canadian
court to seize the assets of the Chinese firm in Canada to compensate the Philippines for the loss
of the gas.

The Philippines can also seek reparations from China for damages. The ruling held that Chinas
dredging inflicted irreparable injury to the fragile marine ecosystem in the Spratlys, including
Mischief Reef and Subi Reef, which form part of the Philippine continental shelf. Under the Law
of the Sea, a state is liable for damages for causing harm to the marine environment of a coastal
state.
The Philippines can also ask the International Seabed Authority, a creation of Unclos, to suspend
the four permits it issued to China to explore the seabed in the high seas beyond national
jurisdiction. States that ratified Unclos agreed to accept it as a package dealaccepting its
provisions entirely and not selectively. If China rejects the ruling, the Philippines can assert that
China is accepting the benefits of Unclos under its seabed provisions but rejecting its provisions
under its dispute settlement mechanism.
Over time the ruling will be enforced substantially because the world will never accept that a
single state can claim ownership to almost an entire sea that is bordered by several states. Such a
precedent would mean the demise of the Law of the Sea.
Mr. Carpio is an associate justice on the Supreme Court of the Philippines. This article is his
personal opinion and does not necessarily represent the views of the Philippine government.
America Can Enforce the South China Sea Decision without Humiliating China

The Permanent Court of Arbitration in The Hague released a stinging rebuke to China in last
weeks ruling on the arbitration case brought by the Philippines. Philippine presidents Benigno
Aquino III and Rodrigo Duterte both risked their relations with China by initiating and, in the
latter case, not acquiescing to Chinese demands that they withdraw the case. The Philippines
should be strongly supported by the United States and our allies in this moment of need,
including through U.S. naval enforcement of the ruling and U.S. ratification of the UN
Convention on the Law of the Sea.
The intensity and unanimity of the courts ruling was a surprise to most analysts, and must feel
like a crushing humiliation to Chinese officials. China reacted swiftly and with equal intensity.
The arbitration tribunal made the illegal and invalid so-called final verdict on the South China
Sea dispute on July 12, China said. Regarding this issue, China has made the statement for
many times that it is against the international law that the Aquino III administration of
Philippines unilaterally requested the arbitration. The arbitration tribunal has no jurisdiction on
this matter.
According to the official newspaper of the Chinese Communist Party, the Peoples Daily,
Chinese President Xi Jinping said China will not accept any proposition or action based on the
decision Tuesday by the South China Sea arbitral tribunal. The paper made a fairly transparent

threat to Chinese investment and trade in the Philippines, based on the instability and
insecurity caused by the arbitration case.
The editor-in-chief of China.org.cn, Wang Xiaohui, called the arbitration a farce and a U.S.-led
conspiracy. He highlighted U.S. deployment of two aircraft carriers to the South China Sea,
negative coverage of China in U.S. media and by U.S. officials, the United States colluding
with Japan, U.S. sabotage of the ASEAN-China relationship, an ulterior motive behind
THAAD missile deployment in South Korea, and the United States manipulating the tribunal
to contain China and maintain U.S. global hegemony. There was a real undercurrent of hatred
in these claims, which augurs badly for peace and stability in the South China Sea.
The newspaper editor even claimed that the timing of the Hague courts announcement was a
U.S. calculation. The timing of the announcement totally reflected the U.S. calculations as June
30 was the date that the new Philippine President Rodrigo Duterte was to be sworn in,
according to Mr. Wang. Picking this date to announce the verdict represents no more than a
backing up of the new Philippine government, a move that the U.S. hopes will minimize the
possible improvement between China-Philippine relations.
This deterioration in China-Philippine relations was what actually happened, but it could have
gone the other way. I always thought the date of the ruling, just one or two weeks after the new
president was sworn in, was to allow for the new administration to make a deal with China. As it
turned out, China tried to make a deal with President Duterte, who refused to give up his
sovereign claims and said so plainly after a meeting with the Chinese ambassador to the
Philippines. That too, must have been humiliating for China.
Angered and humiliated, China is using the ruling primarily to try and outrage Chinese citizens,
short of causing destabilizing protests, and thereby consolidate Chinese Communist Party control
of the country. Chinas main worry is internal stability and the maintenance of party control. The
official Chinese reaction so far may seem tone-deaf from an international perspective, but it will
gain enough support in China to actually strengthen Chinese Communist Party popularity.
So, domestically, China is so far a winner. What comes next, though, will have huge
repercussions on whether China stays a winner domestically, as well as for international law,
U.S. alliances in Asia and abroad, and the future of the Chinese political system. If the United
States and its allies enforce the international courts ruling, for example by protection of
Philippine fishermen at Scarborough Shoal, international law and the credibility of U.S. alliance
commitments will be strengthened, and the credibility of the Chinese Communist Party will be
weakened.

On the other hand, if China is allowed to ignore the ruling, international law and U.S. credibility
will suffer. Regional diplomats and Chinese citizens will see the Chinese Communist Party as
powerful and strategic, giving the party more followers both domestically and internationally.
Chinas humiliation, and a lack of an enforcement mechanism for the UN Convention, could lead
China to attempt to punish the Philippines for the arbitral ruling. Such punishment could attempt
to prove the strength of China to domestic and international constituents by punishing the
Philippines on several levels:
1. Building a military base on Scarborough Shoal, which a Chinese official stated as an intention
for 2016.
Enforce Law Of The Sea Ruling: Stand With The Philippines Now, Or Later Face China
Alone

he Permanent Court of Arbitration in the Hague ruled yesterday in favor of the Philippines, and
against Chinas nine-dash line. The United Nations Convention on the Law of the Sea
(UNCLOS) ruling delivered an almost-unadulterated victory to the Philippines and a humiliating
moral defeat to China. China experts are now calling for U.S. and allied enforcement of the
claim.
Congressman Randy Forbes (R-VA) wrote Should China respond rashly to the ruling,
Washington should leave no doubt about its intention to stand with our treaty allies and partners
to resist aggression and uphold both our values and interests. One mid-level official, who
commented privately, said We are where we are now because of the World communitys
reluctance to confront Beijing 4-6 years ago when it was aggressing Japan in the Senkakus and
the Philippines in the SCS. If we do not confront Beijing now, we will be facing even more
severe aggression 4-6 years from now.
China reacted to the court ruling, even before it was made, by saying it was invalid, null and
void, and would be ignored. China reiterated this position after the ruling yesterday. This puts the
ball back into the court of the law-abiding countries.
The U.S. and our allies are the only countries with the power to enforce the PCA ruling. The
ruling is in favor of a U.S. treaty ally, the Philippines. Thus it is doubly incumbent on the U.S.,
since China has refused to abide by the ruling, to organize allied enforcement of the ruling.
Not doing so would be to shirk our duties as a member of the international community, as an ally
of the Philippines, and ultimately in our own defense. If China succeeds in flaunting international
law and territorial claims in this case, neither will they be deterred in 10 or 20 years, when they
are much more powerful economically and militarily, from claiming even more. Enforcement of

the international ruling is ultimately necessary for the defense of not only Philippine, but U.S.
territory.
Several steps should be taken to enforce the ruling such that war is averted. First, the U.S. should
obtain commitments from allies, including E.U. countries, the U.K., Japan, Australia, India, and
South Korea, to assist in a coalition to enforce UNCLOS in the South China Sea. Second, the
U.S. and allies should jointly inform China that we intend to enforce the ruling, and thereby give
China an opportunity to comply quietly and save face. Third, the U.S. and any other allies who
have not ratified UNCLOS, should do so. This will counter Chinas argument that the U.S. is not
a signatory to UNCLOS, so should not rely on UNCLOS as justification for its actions.
Should China continue to refuse to comply with the Courts ruling, the U.S. and allies should
impose economic sanctions on China, the removal of which should be linked to Chinas full
compliance with the ruling. I expect this would achieve the desired result, as other than stability
of Communist Party rule, economic growth is the top concern of Chinese leaders.
3 ways how PH can enforce the South China Sea decision

Even if there is no world police to enforce the recent ruling of The Hague-based Permanent
Court of Arbitration (PCA) on the arbitration case initiated by the Philippines against China on
the South China Sea, Philippine senior associate justice Antonio Carpio said all is not lost.
In a commentary posted on the Wall Street Journal, Carpio said there is no world police, but the
Philippines is not helpless.
There are three ways for the Philippines to affirm is exclusive economic zone (EEZ) in the area
and prevent China from exploiting the natural resources even if China rejects the ruling.
1. Sue the private sector partner. If a Chinese oil company brings a gas platform to Reed
Bank, within the Philippine EEZ, to extract gas, the Philippines can sue the company in a
state where the company holds its assets. Carpio wrote that the Philippines can show the
court the ruling that the gas in the Reed Bank belongs to the Philippines. The Philippines
can ask the court to seize the assets of the Chinese firm in Canada to compensate the
country for the loss of the gas.
2. Seek reparations from China for damages. The Philippine magistrate pointed out that
the PCA ruling held that Chinas dredging inflicted irreparable injury to the fragile
marine ecosystem in the Spratly Islands, including Mischief Reef and Subi Reef, which
form part of the Philippine continental shelf. Under the United Nations Law of the Sea
(UNCLOS), a state is liable for damages for causing harm to the marine environment of
a coastal state.
3. Seek suspension of exploration permits. Carpio noted that the Philippines can also ask
the UNCLOSs International Seabed Authority to suspend the four permits issued to

China to explore the seabed in the high seas beyond national jurisdiction. States that
ratified UNCLOS agreed to accept it as a package dealaccepting its provisions
entirely and not selectively. If China rejects the ruling, the Philippines can assert that
China is accepting the benefits of UNCLOS under its seabed provisions but rejecting its
provisions under its dispute settlement mechanism, Carpio said.
The PCA arbitral award strikes down as illegal Chinas nine-dash line as a claim to nearly 90%
of the waters of the sea. The result is that some 25% of the waters are high seas, found in the
seas center.
Naval superpowers, led by the U.S., have declared that they will sail and fly in the high seas and
EEZs of the South China Sea to assert freedom of navigation and overflight for their military and
civilian vessels and aircraft.
Carpio said since China cannot prevent the worlds naval powers from asserting such freedom of
navigation and overflight, an important part of the ruling will definitely be enforced. The South
China Sea can never become a Chinese lake as China intended under its nine-dash-line claim.
The magistrate ended his commentary with this statement: Over time the ruling will be enforced
substantially because the world will never accept that a single state can claim ownership to
almost an entire sea that is bordered by several states. Such a precedent would mean the demise
of the Law of the Sea.
It was Carpio who penned the Supreme Court decision that unanimously affirmed the
constitutionality of the Philippine Archipelagic Baselines law of 2009. The Baselines Law was
passed to beat the deadline of the UN Convention on the Law of the Seas. Under the UNCLOS, a
countrys 200-nautical-mile EEZ is determined to extend outward from that countrys baselines.
Factbox: Why the Philippines' South China Sea legal case matters

1. WHY IS IT IMPORTANT?
- The Philippines' case against China marks the first time any legal challenge has been brought in
the South China Sea territorial dispute. Centered on the Spratlys archipelago, which straddle vital
international shipping lanes, tensions in the South China Sea have simmered for decades,
intensifying in recent years. China, Taiwan, Vietnam, Malaysia and Brunei all claim the Spratlys
and/or surrounding waters. China, Taiwan and Vietnam claim all of the Paracel Islands in the
north of the South China Sea.
- The dispute has intensified political and military rivalry across the region between the rising
power of China and the long-dominant player, the United States. China has been projecting its
growing naval reach while the United States is deepening ties with both traditional security allies
such as Japan and the Philippines and with newer friends, including Vietnam and Myanmar.

- Chinese analysts say the South China Sea will only grow in importance for Beijing, particularly
as its submarine base on Hainan Island will be crucial to China's future nuclear deterrent.
2. WHAT DOES THE CASE INVOLVE?
- The Philippines formally lodged its arbitration case under the United Nations' 1982 Convention
of the Law of the Sea, known as UNCLOS, in January 2013.
- China repeatedly warned the Philippines against pushing ahead with the case, and Beijing has
refused to participate in any of its hearings, forgoing its right to appoint a judge. China says the
court has no jurisdiction, and that its historic rights and sovereignty over the South China Sea
predates UNCLOS.
- UNCLOS does not deal with sovereignty issues, but sets out what countries can claim from
various geographic features at sea, as well maritime behavior. That regime allows for 12 nautical
miles of territorial waters from islands and rocks and 200 nautical miles of Exclusive Economic
Zone (EEZ) from islands that can sustain ordinary human habitation. An EEZ is not sovereign
territory but gives a country the right to the fish and seabed resources, including oil and gas,
within that zone.
- China and the Philippines are among the 167 parties that have signed and ratified UNCLOS.
The United States has not, as the law has been blocked in the U.S. Senate in the past. But its
government recognizes it as customary international law, including during naval patrols of the
South China Sea.
3. WHAT IS THE KEY TO MANILA'S CASE?
- Manila's case is built around 15 points that seek to clarify its rights to exploit its EEZ. It
challenges Chinese activities, including fishing, dredging and law enforcement patrols, as well as
Beijing's reclamation and construction on seven reefs in the Spratlys. It also challenges China's
effective control of the Scarborough Shoal, seeking a ruling that shows it sits entirely within the
Philippines' EEZ.
- Any ruling on the legality of the "nine-dash line", Beijing's controversial claim to much of the
South China Sea, will be closely watched. Created in the late 1940s and used on official Chinese
maps, the line bisects the EEZs of several other countries and reaches deep into the maritime
heart of Southeast Asia.
- Manila's lawyers have also argued that none of the islands, shoals and reefs across the Spratlys
are significant enough to lay claim to an EEZ.
4. WHAT HAPPENS NEXT?

- While the findings are legally binding, UNCLOS has no enforcement body and legal experts
say it remains unclear what can be done when China ignores the ruling. (Cases involving a ruling
over actual sovereignty require mutual consent by states and are heard by the International Court
of Justice in The Hague. ICJ rulings are enforceable by the United Nations' Security Council, of
which China is a permanent member.)
- Chinese officials have not ruled out future military action to enforce their claims, including
construction on the Scarborough Shoal or the imposition of an air defense zone over the area.
They have warned against further expansion of the U.S. military presence in the area.
- U.S. responses could include an increase in the frequency of so-called freedom of navigation
operations and overflights in the region and increased defense aid to Southeast Asian countries,
according to U.S. officials speaking on the condition of anonymity.
Other claimants, particularly Vietnam, are being closely watched to see whether they will launch
their own action against China. Hanoi has sought legal opinions on a possible case and its
officials have yet to rule out such action.
5. WHAT IS THE PERMANENT COURT OF ARBITRATION?
- Founded in 1899, the Permanent Court of Arbitration (PCA) is the oldest international judicial
institution with 117 member countries.
- The PCA is also often called upon to settle disputes under international treaties such as the U.N.
Convention on the Law of the Sea (UNCLOS), which both China and the Philippines have
signed.
- China, which is boycotting proceedings in the South China Sea case, declined to appoint an
arbitrator. The Philippines appointed one judge, a German national. The president of another
court, the International Tribunal for the Law of the Sea, appointed the remaining members.
- China has said the resulting tribunal, a panel of four Europeans presided over by a Ghanaian,
does not adequately reflect the diversity of the world's legal system, implying that it might be
biased against China.
- The body, based in the neo-Gothic extravagance of the Peace Palace in The Hague, has no
enforcement powers. Winning parties typically pursue their claims in domestic courts - often a
fruitless exercise.
(Reporting by Greg Torode and Thomas Escritt; Editing by Lincoln Feast and Gareth Jones)
Enforcing an Unenforceable Ruling in the South China Sea

There is no world police to compel powerful nations to comply with international justice. But
there is a private sector.
The most frequently asked question since Tuesdays ruling on Chinas maritime claims has been
a familiar chorus to public international lawyers: what good is a ruling without enforcement?
Nothing more than a piece of paper is how senior Chinese diplomats pre-emptively described
this ruling by a tribunal of senior judges, whom I was privileged to clerk for during an earlier
phase of the case. The tribunal found Chinas nine-dash line encircling the South China Sea
and island-building activities thereinto be legally meaningless. But these decisions are not
enforceable in the conventional sense.
Since the Philippines initiated this case in 2013, China has repeated the mantra that its nonacceptance of and non-participation in the arbitration are solidly founded in international law. It
employs state-run media to sow doubts concerning the rulings legitimacy, making its case for
non-compliance.
Such doubts reflect three fundamental misconceptions. The first concerns the Philippines
initiation of the arbitration. Chinas repeated description of this act as unilateral implies that it
had not consented to arbitration as a means of settling regional disputes. Yet Beijing had freely
ratified the UN Convention on the Law of the Sea (UNCLOS), a treaty that expressly empowers
any nation to initiate claims on a range of issues.
The second misconception is also semantic. By reiterating that it does not accept the
arbitration, China suggests that the tribunals pronouncements are advisory. Yet the arbitration
was initiated under a section of UNCLOS entitled Compulsory Procedures Entailing Binding
Decisions. Although the tribunal cannot directly enforce the ruling, it remains the authoritative
statement on Chinas legal responsibility in this dispute.
The final misconception is Chinas assertion that it can legally ignore this ruling because the
tribunal misinterpreted UNCLOS when it affirmed its jurisdiction. This premise turns a
defendant into his own judge, and diminishes the value of negotiating treaties with strong dispute
settlement provisions. That is the rationale underlying the principlefound in customary
practice and explicitly in UNCLOSthat such decision making authority rests with the tribunal
alone.
Publicly clarifying these three points reinforces the rulings legitimacy, and provides an ideal
environment for the parties to negotiate its implementation. While China has acknowledged the
potential for win-win joint development of maritime resources, it also flatly rejected the
tribunals decision. Its government has invested heavily in a now-rejected position of exclusive
sovereign rights to resources in and beneath the South China Sea.

Yet the seafloor may also be the best venue for enforcing this ruling.
By nullifying Chinas nine-dash line and pouring cold water on regional sovereignty claims, the
tribunal opened the door to drilling activities. There is now no legal ambiguity impeding Manila
from licensing blocks of its continental shelf to oil and gas contractors. Similarly, a donut
hole in the middle of the South China Sea (i.e., beyond the continental shelves of all
surrounding countries) is legally open to exploration activities by any nation. A comparable
analysis applies to fishing rights in these respective zones.
There will always be commercial operators who are willing to take grave risks for a profit. Some
may consider that, despite Chinas opposition to foreign claims and interventions, it would not
invite the consequences of employing military force against the private citizens of a third-party
nation who are conducting business in accordance with a unanimous 479-page ruling.
To answer the question of enforcing international justice, we should thus reconsider enforcement
from a bottom-up perspective. This is in keeping with trends toward the empowerment of the
individual in international law over recent generations: the recognition of human rights, the legal
facilitation of private investment in foreign nations, the role of civil society in international
policymaking. It also accords with a central objective of public international law: to circumvent
direct military conflict between nations.
Ultimately, the time required to achieve compliance is a reflection of the creative faculties of
potential stakeholders in the South China Sea, rather than an indication of the arbitrations
legitimacy. International law is maddeningly patient, and this long-awaited ruling will be no less
binding with age.
Brian McGarry is appointed lecturer at The Graduate Institute of International and
Development Studies in Geneva, and formerly assistant legal counsel at the Permanent Court of
Arbitration in The Hague. The views expressed in this paper are those of the author alone.