Five years ago, on July 12, 2016, the Permanent Court of Arbitration (PCA) in The Hague announced an award in the arbitration case between the Philippines and China over the South China Sea (SCS), which invalidated China’s expansive claims in the disputed waters and provided answers to many questions.
In 2012, aggressive China seized Scarborough Shoal, which forced the Philippines to go to the PCA in 2013 to challenge China’s claim, based on the controversial Nine-Dashed Line map, that it owned more than 90 percent of the SCS. China added another dash in 2013 to the map to cover Taiwan.
Scarborough Shoal is claimed by China, the Philippines and Taiwan.
According to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), all the coastal states are entitled to a 200-nautical mile exclusive economic zone (EEZ), continental shelf rights and a 12-nautical mile territorial sea. China and all SCS claimants signed and ratified the UNCLOS. However, China’s claims in the SCS are not according to the UNCLOS.
In its historic award, the PCA stated that China’s claim of historical rights to the waters of the SCS is not legally valid.
It agreed with the Philippines that Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are rocks. Hughes Reef and Mischief Reef frequently submerge at high-tide, generating no maritime entitlements. Second Thomas Shoal and Reed Bank are also submerged and belong to the Philippines’ continental shelf, thereby denying China any rights to the area.
The PCA stated that Scarborough Shoal should remain open as a traditional fishing ground for those who have long relied upon it.
It also explained that China’s artificial-island-building activities in the South China Sea have caused serious damage to the marine environment. China had breached the Philippines’ sovereign rights by exploring for oil and gas near the Reed Bank, which is located in the EEZ of the Philippines.
The tribunal arbitration was boycotted by China, despite the award being legal, final and binding. Though the PCA is neither a court nor a United Nations body, the arbitral tribunal constituted under the UNCLOS.
As a signatory to the UNCLOS, China has an obligation to comply with the PCA award and follow all maritime rules mentioned in the UNCLOS. Unfortunately, bellicose China refused to comply even after five years.
“The Arbitral Award is not a PCA ruling. It is an UNCLOS ruling. China has a right not to participate in the proceedings. Even without China’s participation, the Tribunal considered China’s position and claims, and made sure that the Philippines’ claims are well founded in fact and law. On the other hand, China has an obligation to accept the final and binding ruling. Under UNCLOS, China’s non-participation is allowed, but non-acceptance is not,” Tetsuo Katoni, a Japanese scholar, wrote in an article titled “The South China Sea Arbitration: No, It’s Not a PCA Ruling” in the Maritime Issues website.
On the other hand, China called the award “illegal” and “invalid”.
“China’s position is consistent, clear and firm. The South China Sea arbitration and its so-called award are illegal and invalid. China does not accept or participate in the arbitration, nor does it accept or recognize the so-called award,” the Chinese Embassy in Manila said in a statement, which was published by ABS-CBN News website.
Both China and the Philippines are contracting party members or signatories of the PCA. How can it be illegal? The PCA award is legally valid.
In 2016, Philippine President Rodrigo Duterte did not push China to implement the PCA award in exchange for economic rewards from Beijing. Now, the Duterte administration has realized its mistake after witnessing China’s aggressive behaviour in the SCS and has started to demand for the implementation of the PCA award.
“We urge China to comply with the Permanent Court of Arbitration (PCA) ruling, and abide by the United Nations Convention on the Law of the Sea (UNCLOS) to which it is a signatory,” Philippine Defense Secretary Delfin Lorenzana said in a statement last year.
China has also coaxed, cajoled and coerced other claimants not to take up this issue. But Indonesia, a non-claimant state, welcomed the PCA award. As a de facto leader of ASEAN, Indonesia always ask all SCS claimants to follow international maritime rules.
“Indonesia reiterates that the Nine-Dash line map implying historic rights claim clearly lacks international legal basis and is tantamount to upset UNCLOS 1982,” Indonesia’s Permanent Mission to the United Nations in New York said in a statement recently.
China, the world’s most populous country and ranking second in the global economy, is a permanent member of the UN Security Council. As a law-abiding, peace-loving and responsible member of the international community, China must comply with the PCA award and follow international maritime laws.
It should follow the example of India, a responsible regional player. In 2018, India lost a similar arbitration to its neighbour, Bangladesh, in The Hague. India accepted to implement the award. Many countries, including the US and Japan, are asking China to follow the example of India.
France, Germany, and the United Kingdom submitted a note verbale to the United Nations recently praising the 2016 arbitral award..
The three European powers said that the “claims with regard to the exercise of historic rights over the South China Sea waters do not comply with international law and the United Nations Convention on the Law of the Sea (UNCLOS) provisions”.
The Philippines, which says the PCA award is non-negotiable, called on China to respect international laws.
“It is in the best interest of regional stability that China heed the call of the community of nations to follow international law and honor existing international agreements,” Lorenzana told the ABS-CBN News recently.
Last year, Vietnam, the second biggest claimant and a non-permanent member of the UNSC, brought the issue of the PCA award implementation to the UNSC. President Duterte also raised it at the UN General Assembly session last year. Indonesia, Malaysia and the Philippines submitted note verbales regarding this issue to the UN.
Despite international condemnation, China has been showing its aggressiveness in the SCS. It illegally built several artificial islands in the SCS by reclaiming the land and converted some of them into military installations.
On May 31 this year, 16 Chinese aircraft intruded Malaysia’s sovereign airspace in Sarawak state.
Malaysian Foreign Minister Hishammuddin Hussein condemned the incident as an “intrusion”.
“Malaysia’s stand is clear — having friendly diplomatic relations with any country does not mean that we will compromise on our national security,” Hishammuddin said in a statement.
In March, more than 200 Chinese fishing boats with maritime militia were spotted near Whitsun Reef, a shallow coral region about 175 nautical miles (324 kilometers) west of Bataraza town in the western Philippine province of Palawan.
Last year in April, a Chinese warship pointed a radar gun at a Philippine Navy ship in the SCS. Later in the same year, a Chinese vessel collided with a Filipino fishing boat and sank it, leaving the boat’s crew floating in the middle of the sea. A Vietnamese vessel rescued them.
All these acts by China have violated international laws, including UNCLOS, the PCA award and the Declaration on the Conduct of Parties in the South China Sea (DOC). It has negatively affected regional peace, stability, freedom of navigation and sovereignty of countries, such as Vietnam, Indonesia, the Philippines and Malaysia.
The time has come for ASEAN member states to unite to demand China to comply with the PCA award as well UNCLOS. The countries must also try to speed up negotiations with China for a substantial, effective and legally binding Code of Conduct (CoC) in accordance with UNCLOS.