The Hague ruling: Viewpoints on the road ahead

A close-up view of the cover page of the ruling documents in the South China Sea Arbitration issue, made available by the Permanent Court of Arbitration in The Hague.
A close-up view of the cover page of the ruling documents in the South China Sea Arbitration issue, made available by the Permanent Court of Arbitration in The Hague.PHOTO: EPA
An aerial photo taken on May 11 last year shows alleged reclamation works by China on Mischief Reef.
An aerial photo taken on May 11 last year shows alleged reclamation works by China on Mischief Reef. PHOTO: AFP
 Filipino activists and Vietnamese nationals release balloons and wave Philippine flags during a demonstration along the bay walk in Roxas Boulevard in Manila on July 12, 2016.
Filipino activists and Vietnamese nationals release balloons and wave Philippine flags during a demonstration along the bay walk in Roxas Boulevard in Manila on July 12, 2016.PHOTO: AFP

A United Nations-backed tribunal on Tuesday (July 12)  ruled on an arbitration case brought by the Philippines against China’s expansive maritime claims in the South China Sea. The findings largely favoured Manila.

Here is a look at some of the different viewpoints on the strong and sweeping ruling and what the road ahead looks like.

China does not need to always win to be great

In his address at the 95th anniversary of the Chinese Communist Party (CCP) this month, President Xi Jinping devoted an unusually lengthy part of his speech to foreign policy.

Speaking just days before a ruling by the Arbitral Tribunal at The Hague on China's claims in the South China Sea, most international media focused on him saying that China will never compromise on its sovereignty. The Chinese media, however, picked out certain phrases to highlight his vision for the country on the global stage.

One of them is "ren lei ming yun gong tong ti", or a "community of common destiny for mankind", a term Mr Xi has used at least 60 times since 2013.

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The Hague ruling: New great power contest over global norms

The much anticipated award on the South China Sea(SCS) case filed by the Philippines against China was issued by the Arbitral Tribunal at The Hague on Tuesday. While most observers had expected Manila to prevail, the tribunal's rebuke of China still came as a surprise.

In particular, the ruling nullifies China's claims to the waters in the SCS based on historical rights and demarcated by its controversial nine-dash line. It also threw down the gauntlet on Beijing's behaviour in the SCS, including its island-building programme and the damage caused to the marine environment.

Passionate advocates of international law may hail the award as a significant step forward on the SCS disputes. However, reality will soon seep in after the initial euphoria dies down.

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China's response to Hague ruling restrained so far

Two days after a UN-backed arbitration tribunal dented China's territorial claims in the South China Sea, none of the worst-case reactions has come to pass.

These included Beijing declaring an air defence zone over the South China Sea, seizing control of a shoal in the disputed Paracel islands, and withdrawing from the United Nations Convention on the Law of the Sea.

In what is clearly an exercise of strategic restraint, China's response has comprised largely pledges by its leaders and officials to defend its sovereignty, and denouncements of the tribunal and its ruling. The Foreign Ministry has hit out at countries such as the United States urging China to respect the ruling.

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Tribunal ruling a game changer

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.

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.

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The Hague ruling: 'Absurd award that contravenes procedural justice'

On July 12, a temporarily established Arbitral Tribunal located in The Hague, sharing office service with the Permanent Court of Arbitration but not a part of that, released a unanimous award over the South China Sea Arbitration.

The award was in favour of almost all the Philippines' claims. However, no matter how sophisticated the 500-page award may appear, it comes from an arbitration that is flawed in procedure, and is not in accordance with its jurisdiction. In short, with the arbitration's lack of legitimacy and jurisdiction, the award is not legal, and thus not binding.

While the award categorically denied China's historic rights in its nine-dash-line map, in fact it does not even have authority and jurisdiction over territorial disputes, as stated in the United Nations Convention on the Law of the Sea (Unclos).

Then there is the fact that the arbitration case was unilaterally initiated by the Philippines without any diplomatic consultation with China.

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Philippines will leverage on favourable ruling

The Philippines just scored a historic legal victory against China in the South China Sea. The much-anticipated decision came more than three years after the South-east Asian country filed for compulsory arbitration under the United Nations Convention on the Law of the Sea (Unclos) against China, which boycotted the whole proceedings and has refused to acknowledge its jurisdiction.

The Philippines won on almost all of its arguments against China, which has bitterly dismissed the verdict as "null and void". The arbitration outcome marks a significant setback for China.

For years, China has sought to procedurally undermine the Philippines' arbitration manoeuvre by invoking jurisdictional and admissibility concerns. In its position papers, China has repeatedly argued that Unclos and arbitration bodies under its aegis lack the mandate to oversee what are essentially sovereignty-related disputes. China also cited exemption clauses under Unclos, arguing that it has opted out of arbitration proceedings that concern its sovereignty claims.

Beijing also stepped up its diplomatic counter-manoeuvres.

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The Hague ruling: Turbulent waters ahead

Following Tuesday's historic ruling on the South China Sea by the UN-backed Arbitral Tribunal at The Hague, two questions should be uppermost in our minds.

First, how will the ruling be assessed? And second, how might we expect the parties, and other claimants and stakeholders, to respond?

Where you stand on the ruling depends, of course, on where you sit. For the Philippines, which unilaterally initiated legal proceedings at the United Nations against China's sweeping maritime claims in the South China Sea in January 2013, the ruling represents a stunning legal victory.

Contrary to expectations, the five judges unanimously ruled in favour of almost all of the 15 disputes submitted by Manila, leaving observers flabbergasted by the sheer magnitude of the Philippines' victory.

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South China Sea ruling: Verdict means precious little if parties don't respect it, actors don't enforce it

On July 12, the arbitral tribunal adjudicating the Philippines' South China Sea case against China ruled overwhelmingly in favour of Manila, determining that the extent of several major elements of Beijing's claim and its efforts to enforce it were unlawful. Though the verdict goes a long way in clarifying aspects of the South China Sea dispute, its implications are less clear.

By any measure, the tribunal's ruling overwhelmingly - though not fully - favoured the Philippines on several counts.

First, it found that China's claims to historic rights with its nine-dash line had no basis in international law.

Second, it sided with the Philippines on most of the features in the Spratlys that China claims, finding that these were rocks rather than islands and that they were thus only entitled to 12 nautical miles (nm) of territorial seas, not the 200 nm of exclusive economic zones (EEZs) or continental shelves of islands. This effectively limits Beijing's expansive claims to just the disputed features and the territorial seas they generate.

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The Hague ruling: Award in but jury's out on what's next at sea

An award by an international law tribunal often marks not the end of a dispute but its next phase.

If the case is one in which both parties agreed to take their dispute to an international court for adjudication, as Singapore and Malaysia did on Pedra Branca, then the post-award phase can be one that sees the two sides working together to sort out issues such as maritime boundaries.

But the South China Sea Arbitration that ended yesterday did not start that way. Instead, it was the Philippines that brought the case against China in 2013. China has consistently rejected the Arbitral Tribunal's jurisdiction over the dispute and said it would not accept its judgment.

Now that the tribunal has made a final award that is overwhelmingly in favour of the Philippines, a big question mark hangs over what will happen next in the waters around the disputed rocks and shoals.

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