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South China Sea: ASEAN may give Beijing last word on court ruling

A Chinese H-6K bomber patrols the islands and reefs in the South China Sea.

However, the judgment can now be used as a precedent for other contested claims over islets in the region, which include several between Japan, South Korea and China.

And China, for all its show of insouciance, has lost face.

The tribunal found that since “none of the features claimed by China (in the Spratly islands) was capable of generating an exclusive economic zone” — 370km from a country’s shoreline, a foundational element of UNCLOS — it could declare that certain sea areas are within the EEZ of The Philippines. Claims based on competing, often anecdotal versions of history, were not found to supersede those based on maritime law.

The court said, in its 497-page judgment, that China had “violated The Philippines’ sovereign rights in its EEZ by interfering with Philippine fishing and petroleum exploration, constructing artificial islands and failing to prevent Chinese fishermen from fishing in the zone.”

It found that Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.

It said China had “caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems”, and that “Chinese fishermen have harvested endangered sea turtles, coral, and giant clams on a substantial scale”.

Ouch. Especially since China has asserted that its actions in the sea, including its construction on islets and reefs, have been primarily intended to defend the region’s ecology and productive capacity.

Within China, some bloggers and other social media commentators have pointed out that the party-state’s antipathy to the legitimacy of the court in The Hague is consistent with its attitude to the rule of law at home, where although at the local level officials can occasionally find themselves in legal trouble, no court is ultimately free to challenge the authority of the party at its governing heights.

The crushing nature of the verdict — arguably too overwhelmingly so, even give Beijing’s refusal to present a case despite being a signatory to UNCLOS — fits neatly into the historic narrative that has since its birth remained a central theme of the party, and of China’s whole education system: that of the humiliation heaped on the country by foreigners.

Since the start of the controversies over the South China Sea, Beijing has laid over the top of this narrative a further template — that the hidden, manipulative hand of the US lies behind every challenge and rebuff it has faced, that left to their own devices countries such as Vietnam and Indonesia would otherwise be content to discuss, individually, tribute-state like terms under which they accept China’s broad, historically based claims on the sea, in return for economic benefits.

China, however, might yet have the last word.