One year after PCA ruling, China must abide by the law

One year ago, on July 12, 2016, the Permanent Court of Arbitration (PCA) announced that the South China Sea Arbitral Tribunal had issued a unanimous award in favour of the Philippines in the South China Sea (SCS) conflict.

The legally binding award has demolished China’s expansive historical claims in the SCS and pointed out that Beijing had no entitlement to an exclusive zone within 200 miles of the Spratly Islands. It is a landmark judgment that upholds a rule-based international maritime order enshrined in the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

The arbitration concerned the role of historic rights and the source of maritime entitlements in the South China Sea, the status of certain maritime features and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China that were alleged by the Philippines to violate the Convention.

The basis for this arbitration is the UNCLOS of which both the Philippines and China are parties. The Convention was adopted as a “constitution for the oceans,” in order to “settle all issues relating to the Law of the Sea”.

However, China vehemently rejected the ruling, saying the essence of the subject-matter of the arbitration is territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the UNCLOS. China also insisted that the Tribunal lacks jurisdiction over the Philippines’ claims and the proceedings are not objective or just.

And despite being a party to the UNCLOS as well as the dispute, China did not appear before the Tribunal to defend itself. For those reasons, China stated that the Tribunal’s decision was not legally binding, and China would not recognise nor implement the award.

As the award was totally rejected by China, its implementation would certainly be difficult as proven in the one year since it was delivered. Yet to a certain extent, China has been contained, as it refrained from further rhetoric on the issue and agreed to actively engage in a legally binding Code of Conduct (COC) regarding the disputed seas.

From the other side, the U.S. is still pursuing its interests in the region. With the advent of President Donald Trump, the U.S. has abandoned the “pivot” strategy, adopting a more confrontational approach in the SCS with the sole intent to enforce internationally recognised rights for any nations to use their freedom of navigation in international waters.

The views were making the ASEAN more united with regards to the conflict and made reference to external countries such as the U.S., Australia and Japan as having common voices in the matter.

They also spoke of making China adopt a more “diplomatic” approach rather than the aggressive one that it used to take.

But instead, China now has taken a low-key approach to the South China Sea, it hasn’t made many public statements, removing the attention from what it is doing in the disputed waters. Behind the scenes, China just went ahead with all of its earlier military expansions.

According to some analysts, China’s intimidating diplomatic posture has failed to deter the U.S. and its allies Australia and Japan from publicly supporting the award by the Arbitral Tribunal. On July 25, 2016, the three countries issued a joint statement after their annual trilateral strategic dialogue.

The statement declared that the Ministers expressed their strong support for the rule of law and called on China and the Philippines to abide by the Arbitral Tribunal’s award of July 12, which they said is final and legally binding on both parties.

In June 2017, defence ministers from Australia, Japan, and the U.S. reiterated their support for the UNCLOS and international arbitration at the Shangri-La Dialogue in Singapore.

U.S. Defense Secretary James Mattis highlighted: “The 2016 ruling by the Permanent Court of Arbitration on the case brought by the Philippines on the South China Sea is binding”.

He said the U.S. calls on all claimants to use this as a starting point to peacefully manage their disputes in the South China Sea.
Artificial island construction and indisputable militarization of facilities on features in international waters undermine regional stability.

Australia’s Defense Minister Marise Payne said Australia calls on all countries to act in the South China Sea in ways that are consistent with international law, including the decision of the 2016 Arbitral Tribunal.

And Japan’s Defense Minister Tomomi Inada stated bluntly, that regarding the South China Sea, the final award was rendered in favour of the Philippines in the arbitration against China.

“Despite the fact that this award is binding on both parties, the construction of outposts in the South China Sea and their use for military purposes continues”, he said.

For the Association of Southeast Asian Nations (ASEAN), despite ASEAN’s general inability to mention the Arbitral Tribunal in any of its official statements, the group’s diplomatic strategy has moved forward.

In 2016, ASEAN and China adopted the Code for Unplanned Encounters at Seas (CUES), the Guidelines for Hotline Communications in emergencies, and reached agreement on a draft framework of the mutual COC. The CUES is voluntary and does not apply to military vessels.

With their arrival at a draft framework, China and ASEAN are now poised to start discussions on the COC.
In the 49th Joint Communiqué of ASEAN foreign ministers (AMM) convened in Vientiane from July 24 to 25, 2016 the South China Sea was addressed in a separate section that closely followed previous statements.

At the 28th and 29th ASEAN summits, which were held back-to-back in Vientiane from September 6 to 7, 2016 the ASEAN heads of government issued a statement that reproduced verbatim the seven paragraphs on the South China Sea from the 49th ASEAN Joint Communique and expressed their support for the “full respect for legal and diplomatic processes.”

While in some statements released in 2016 after the Arbitral Tribunal rendered its award the grouping presented a united front on the South China Sea, the 30th ASEAN Summit in Manila in late April 2017 was a setback.

The Philippines under President Rodrigo Duterte delivered a final statement during the summit in which the chair made reference to the SCS in only two paragraphs which repeated past ASEAN formulations.

The statement noted blandly that leaders “took note of concerns expressed by some leaders over recent developments in the area” rather than the “serious concerns” noted in 2016.

There was no mention of the Arbitral Tribunal’s award, although paragraph seven called for the peaceful settlement of disputes “including full respect for legal and diplomatic processes.”

This was in stark contrast to 2016, and that of statements made during the AMM 49 and the ASEAN Summit when the grouping issued some documents expressing their common views on the SCS.

In the end, the ASEAN should go back to its original statements in which it called for China to respect the PCA ruling. ASEAN should also call for unity in dealing with SCS and rope in the Philippines to stand by the ASEAN on this issue.

It is salient that the ASEAN does not stop criticising China’s artificial island construction, which destroys the marine ecological environment and raises the tension.

It has to stress the importance of the completion of the COC as a legally binding document which is in accordance with international law, including the 1982 UNCLOS and the 2016 PCA ruling.

Moreover, all the concerned parties, especially China, must abide by the rule of law. China and the U.S. also need to engage more actively in resolving the South China Sea disputes, and as the 2017 ASEAN chairman and a UNCLOS member, the Philippines should act in the spirit of the PCA ruling.

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