An international panel rejected the legality of China's expansive claims to the South China Sea that were furthered by extensive island-building, a tactic that has drawn the ire of U.S. leaders.
The ruling Tuesday was a victory for the Philippines, which brought the case against China to the Permanent Court of Arbitration, and also a win for U.S. Navy leaders who have warned China was bullying its neighbors to bolster its claims to nearly all of the South China Sea.
The panel in The Hague, Netherlands, dismissed China’s attempt to create legal rights for features in the Spratly Islands chain by constructing air strips and bases there. The ruling states that piling dirt and sand on rocky outcroppings and reefs doesn't confer additional resource rights to the waters around it.
The ruling did not, however, resolve the competing sovereignty claims for high-tide features such as Scarborough Shoal, which the tribunal found were entitled to 12-mile territorial seas. The court did find that none of the contested features were entitled to the 200-mile exclusive economic zones, because none of them could support human habitation in their natural state.
The ruling was rejected outright by China, the Foreign Ministry of which said the court overstepped its jurisdiction by tossing aside a previous agreement between the Philippines and China to resolve the dispute bilaterally. China has embarked on massive island-building to bolster claims to exclusive economic rights to much of the South China Sea, and give them a strong hand to develop deposits of oil and gas in areas near the Spratly Islands.
The U.S. Navy referred all questions on the ruling to the State Department. The State Department was still reviewing the ruling and had no immediate comment on the merits Tuesday.
“In the aftermath of this important decision, we urge all claimants to avoid provocative statements or actions,” John Kirby said in a statement. “This decision can and should serve as a new opportunity to renew efforts to address maritime disputes peacefully.”
At the time of the highly anticipated ruling, the U.S. had a heavy presence in the South China Sea, which included the carrier Ronald Reagan, the cruisers Shiloh and Chancellorsville, and the destroyers Benfold, Curtis Wilbur and Stethem.
U.S. officials, including Defense Secretary Ash Carter and U.S. Pacific Command head Adm. Harry Harris, have regularly stated that the U.S. would fly, sail or operate wherever international law allows.
In recent months, however, U.S. Pacific Fleet head Adm. Scott Swift, called China’s island-building a “reinterpretation” of international law, and condemned unnecessary notifications demanded by the Chinese when sailing through contested waters.
"It's my sense that some nations view freedom of the seas as up for grabs, as something that can be taken down and redefined by domestic law or by reinterpreting international law," Swift told an October maritime conference in Sydney, Australia. "Some nations continue to impose superfluous warnings and restrictions on freedom of the seas in their exclusive economic zones and claim territorial water rights that are inconsistent with [the United Nations Convention on the Law of the Sea]. This trend is particularly egregious in contested waters."
The U.S. Navy has been increasing its patrols of the South China Sea in 2016, according to experts and observers, even as Navy officials have called the deployments "routine."
In 2015, the total number of ship patrol days there was more than 700, but already in 2016 they are on track to exceed 1,000 days — the Navy counts every day a warship spends in the South China Sea as a ship-day and the tally is cumulative.
“On any given day you are seeing two or more ships operating in the South China Sea,” said Bonnie Glaser, who directs the China Power Project at the Center for Strategic and International Studies in Washington, D.C.
In April, Navy Times reported that Harris was pushing for a more assertive approach in the South China Sea that aimed to stop China's island-building and bullying of its neighbors. Since then, Pentagon leaders have announced joint patrols with the Philippines and have embarked on close patrols of some disputed claims and islands.
Among the foremost flash points in the South China Sea is Scarborough Shoal. Situated 140 miles from the Philippines' capital, China seized this shoal in 2012 and has signaled it intends to build on it. The panel did not rule on whether the Philippines or China owns Scarborough, finding only that the rightful owner of this high-tide shoal is entitled to 12-mile territorial waters but not the 200-mile exclusive economic zone.
China's 'choice'
Republicans and Democrats on Capitol Hill praised the ruling, saying that the U.S. should see the arbitration panel's ruling as binding.
Republican Sens. John McCain, chairman of the Senate Armed Services Committee, and Dan Sullivan, R-Arkansas, said they saw the decision as legally binding.
“Today’s completion of the arbitration process would not have been possible without the commitment of the Philippine government to pursue a course of action to resolve these maritime disputes peacefully, consistent with international law, and through international arbitration mechanisms," in a joint statement. “In the future, we encourage other South China Sea claimants, including Vietnam, to seek similar resolution of maritime disputes through arbitration as well as by negotiation among the parties.”
McCain and Sullivan called on China to uphold the ruling.
“With today’s award, China faces a choice. China can choose to be guided by international law, institutions, and norms,” the statement read. “Or it can choose to reject them and pursue the path of intimidation and coercion. Too often in recent years, China has chosen the latter. The world will be watching to see the choice China makes.”
The ranking Democrat on the House Armed Services Committee, Rep. Joe Courtney of Connecticut, said the ruling codified his judgment that China was breaking international law.
“This ruling makes clear what the United States and its allies in the region already know — that China’s excessive maritime claims and reclamation activity in the South China Sea are not only inconsistent with international law but also highly disruptive to stability of the region,” Courtney said.
Courtney also called on the U.S. to ratify the U.N. Convention on the Law of the Sea, to which the U.S. abides by but has never adopted.
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