Exactly two years ago (July 12, 2016), The Hague-based Permanent Court of Arbitration (PCA) ruled in favor of the Philippines on its maritime entitlements in the South China Sea (SCS). The tribunal affirmed 14 of the Philippines’ 15 claims submitted, the remaining claim was partially rejected.
Among the 15 claims, the issue of Scarborough Shoal was the main point of dispute between the Philippines and China.
The PCA clearly rejected China’s self-proclaimed historical rights based on its controversial nine-dash line in the SCS, and it condemned Beijing’s land-reclamation projects and its building of artificial islands in the Spratly Islands. It also stated that low-tide elevations do not generate maritime of zones their own, further strengthening freedom of navigation and overflight near those maritime features.
The rejection of the nine-dash claim by the PCA provides great support to the Philippines, as well as other claimant countries like Vietnam, Malaysia, Brunei and even Indonesia, which is not a claimant country in the SCS.
It was a perfect legal interpretation of the 1982 United Nations Convention of the Law of the Sea (UNCLOS). It also reduced the scope of several maritime disputes.
“The overlap in claimed maritime zones in the South China Sea has dropped from the vast majority of the region’s waters to only the 12-nautical-mile territorial seas around the high-tide features in the Spratly Islands,” said Hong Thao Nguyen, a Vietnamese scholar, in his article titled “Making China Comply” published in the Strategic Review The Indonesian Journal of Leadership Policy and World Affairs (October –December 2016).
“Indonesia, Malaysia, Vietnam, Brunei, Singapore and the Association of Southeast Asian Nations [ASEAN] … will all thus benefit from the ruling. The possibility of having high seas in the semi-enclosed South China Sea has been revived by the verdict”.
Though the ruling was final and legally binding, China, which claims more than 80 percent of the SCS, simply rejected it by saying that the decision was one-sided and it had no obligation to implement it.
China, a signatory to UNCLOS, decided to defy international maritime law as there was no major opprobrium from the United States or other world powers. Strangely, China adheres to UNCLOS in the case of the East China Sea in its dispute with Japan while unilaterally asserting historical rights based on the nine-dash line in the SCS, which are a clear violation of UNCLOS.
Instead, in a conciliatory note, China agreed to a framework agreement over the much-needed Code of Conduct (COC) in the disputed waters of the SCS with ASEAN countries. In late June, during the 15th ASEAN-China Senior Officials Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea, held in Changsha City, China, both parties agreed to move forward on the negotiations for the COC.
“All participants agreed that we will peacefully resolve the South China Sea disputes through negotiations, control differences within the framework set out by regional rules, enhance mutual trust and prevent unexpected incidents on the sea through cooperation, and jointly maintain peace and stability in the South China Sea,” China’s Foreign Ministry spokesperson Geng Shuang said during a press briefing recently.
China did say that it will resolve the disputes with claimant countries through bilateral negotiations.
But China has quietly completed the work on six artificial islands and deployed weapons systems on those islands. The militarization of the SCS not only violates international law but threatens peace and stability in Southeast Asia. China’s unilateral actions also pose a great threat to freedom of navigation, overflight and the movement of goods and traditional fishing activities.
China claims that its activities are within its territory and intended to defend China’s sovereignty.US Defense Secretary James Mattis lashed out at China’s activities at the recent Shangri-La Dialogue in Singapore.
“Despite China’s claims to the contrary, the placement of these weapons systems is tied directly to military use for the purposes of intimidation and coercion,” Mattis said.
Despite Mattis’ criticism, the US did not press China much on the issue of the PCA ruling two years ago.
“US officials wrongly assumed that some combination of pressure, shame, and its own desire for a rules-based maritime order would cause Beijing, over time, to accept the judgment. Instead, China has rejected it outright,” two American scholars M. Campbell and Ely Ratner said in their article titled “The China Reckoning” published recently in Foreign Affairs journal.
With its growing economic weight and military might, China has become more assertive in its claims and more confident in ignoring international criticism about the SCS. It is certainly not a benign regional hegemon. It has never hesitated to use force in its claims in the SCS. Indeed it has been the only claimant to have used force, when it occupied the Paracel Islands, which are claimed by Vietnam.
Many countries, including the US, Japan, India and Australia, have been calling for a rules-based regional security architecture. Given the lawlessness, the SCS is a major flashpoint. In order to reduce tensions and enable confidence-building measures in the SCS, there is an urgent need for a COC, which must be legally binding and based on the 1982 UNCLOS.
After losing the legal battle to the Philippines, China has agreed to a framework agreement about a COC with ASEAN countries. It is the right move in the right direction to reduce tensions. But ASEAN countries and China must negotiate a COC that is based on international law and is legally binding, and which will help all parties and contribute to peace in the region.
There is also a need to honor the definitive PCA ruling, which is applicable not only to China but all countries in the region. Most of the fault lies in the Philippines for not pressing the implementation of the PCA ruling. President Rodrigo Duterte’s administration wants to gain economic benefits from China by not raising the issue of the PCA ruling. Many observers in the Philippines are unhappy with Duterte’s approach.
“Duterte is intent on maintaining strong ties with China, but he is under extreme pressure by the military and broader public to take a tougher stance in the South China Sea. He may be a popular president, but he doesn’t have unilateral power on such sensitive matters of national security. As China expands its footprint, expect the Philippines to adopt a tougher line no matter Duterte’s wishes,” Richard Javad Heydarian, a Filipino scholar, said recently in Singapore.
It is not only the responsibility of the Philippines, but all ASEAN countries as well as global powers, to press for the implementation of the 2016 PCA ruling, which can become the legal standard for the future maritime disputes, providing a solution for many of the problems in the SCS.