South China Sea Arbitration Award: Breathtaking (But Counterproductive)

Feng Zhang

Security, Asia

Beijing is now in a tough spot. 

Anthony Bergin wrote recently on The Strategist that The Hague award in The Philippines v China arbitration case is a heavy defeat for Beijing. The award is breathtaking in its overwhelming support for the Philippines’s position, and comes as a surprise to many seasoned international maritime law experts. I’ll just raise two such surprises.

First, although many experts expected the Tribunal to make general statements on China’s so-called ‘nine-dash line’, few predicted a straightforward verdict declaring the line invalid when it comes to China’s historical rights to resources.

Second, although many expected the Tribunal to rule on the status of some of the maritime features in the Spratly Islands, very few believed that Itu Aba (Taiping Island), the largest naturally formed feature in the South China Sea, would be ruled as a mere ‘rock’ rather than a fully-fledged ‘island.’ An ‘island’ is entitled to a 12-nautical-mile territorial sea, a 200-nautical-mile exclusive economic zone (EEZ) and a continental shelf; a ‘rock’ only gets a territorial sea.

Of those two decisions, the ruling on the status of features is the more controversial in legal terms and also more consequential in terms of the political and diplomatic fallout. A significant part of the international opinion considers Itu Aba an ‘island,’ contrary to the Tribunal’s judgment. No wonder the new pro-independence government in Taiwan categorically rejected the award, forging a truly rare agreement between Taipei and Beijing on an issue of such great importance. The Tribunal’s rule on Itu Aba is careless and debatable to say the least.