South China Sea verdict explained

Spratly Islands
Soldiers of China's People's Liberation Army Navy patrol the Spratly Islands. Photo: Reuters

While the decision in the South China Sea Arbitration is final and binding there are no clear mechanisms for its implementation. Any resolution of the conflict will come down to diplomacy and negotiation, writes Donald Rothwell.

The Philippines has had an historic win in the South China Sea Arbitration founded upon the provisions of the 1982 United Nations Convention on the Law of the Sea. The Tribunal accepted 14 of the 15 claims made by the Philippines in a unanimous award that will set the benchmark for the future resolution of all remaining South China Sea maritime disputes and have implications for all of Southeast Asia.

The case was commenced by the Philippines in 2013 following a flare up between the two countries over the Scarborough Shoal, and what the Philippines perceived as a lack of progress in diplomatic talks to try to resolve their many maritime differences.

In bringing the claim the Philippines also sought to directly challenge China's assertion of its so-called "Nine Dash Line", which is a line that appears on Chinese maps of the South China Sea that encircles much of the region and overlaps areas of the sea claimed by the Philippines, Vietnam, Malaysia, Indonesia and Brunei.

The Philippines also sought to directly challenge Chinese assertion of sovereign rights over the South China Sea based upon claims over very small islands, islets, reefs and shoals, especially those located in the Spratly Islands group.

Finally, the Philippines also challenged China's land reclamation and island building activities throughout the region on the grounds that China had no legitimate basis to undertake those activities which the Philippines argued was causing significant environmental impact.

In considering the "Nine Dash Line" the Tribunal had to first assess a 2006 Chinese Declaration indicating that it did not accept any of the procedures for dispute resolution under the Convention with respect to "historic bays or titles". This raised issues as to whether elements of China's disputes with the Philippines would fall within this exception, including what precisely are the historic titles that China asserts in the South China Sea.

The Philippines claim also raised issues with respect to South China Sea territorial disputes between the Philippines and China, which substantively would have been beyond the jurisdiction of the Tribunal.

In China's written statements released by way of a December 7, 2014 Foreign Ministry Paper, China argued that "the essence of the subject-matter of the arbitration is territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention".

However both the 2016 Award and a previous 2015 Award of the Tribunal that solely addressed issues of jurisdiction dismissed China's objections on this ground and made clear that the decision does not directly address any of the territorial disputes that exist in the South China Sea. While China's claims that the Tribunal lacked jurisdiction on this basis were therefore dismissed, the territorial disputes remain a live issue.

The first appearance of China's Nine Dash Line with apparent official Chinese government endorsement was in a government internal atlas in 1947, which was then published as a Chinese atlas in 1948.

The Line attained modern significance when China lodged a diplomatic note with the UN in 2009 that directly referred to its claim. On this point the Tribunal conclusively resolved that China's claims to the Line based on assertions of historic rights, sovereign rights or jurisdiction, are unlawful. On its own this decision could significantly rewrite the maritime discourse in the South China Sea given that the Nine Dash Line has been such a dominant basis of China's assertions to maritime entitlements in the region in the past decade.

The Tribunal additionally handed down significant rulings that none of the disputed maritime features in the Spratly Islands in their natural condition, including Scarborough Shoal, Gaven Reef and Fiery Cross Reef are to be equated with islands for the purposes of the law of the sea and, as a result, do not generate entitlements to a 200 mile exclusive economic zone or continental shelf. In doing so the Tribunal confirmed that Mischief Reef and Second Thomas Shoal - which has in recent years been the scene of a standoff between the Philippines military and Chinese government vessels - are within the Philippines maritime domain and not that of China.

When turning to China's controversial land reclamation and island building activities in the South China Sea, the Tribunal found these activities had caused irreparable harm to the coral reef ecosystem and breached obligations under six provisions of the Convention. In the case of these activities at Mischief Reef, the Tribunal directly found that China had breached Articles 60 and 80 of the Convention by undertaking land reclamation without the authorisation of the Philippines and in violation of Articles 60 and 80 of the Convention.

The measured response to date from the Philippines is reassuring that calmer heads may prevail as the dispute moves into its next phase. While the decision is final and binding there are no clear mechanisms for its implementation. The Tribunal did not order China to vacate the islands, rocks, and reefs that it has occupied. There is no international police force to enforce the judgment. Ultimately it will come down to how the Philippines and China decide to resolve their South China Sea disagreements through diplomacy and negotiation.

Donald R. Rothwell is Professor of International Law and Deputy Dean at the ANU College of Law, Australian National University.

This article was first published by ABC News.

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team