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Two Years After the Arbitral Tribunal’s Ruling: Calm Before the Storm?

Updated on July 24, 2018

On July, 12th 2016, the arbitral tribunal, under Article 287, Annex VII of the United Nations Convention of the Law of the Sea, ruled against China’s claim of a nine - dash line area (also known as “cow – tongue” area) based on so-called historical rights, after the Philippines initiated arbitration questioning China’s claims to much of the South China Sea maritime area. And over the past two years, the South China Sea has seen new movements.

An international case law in the future

The arbitral tribunal has ruled that the nine - dash line that China refers to as its basis for its claim may not be legitimate from the point of view of the United Nation Convention on the Law of the Sea, in which China signed as a party. The Award comprehensively supported nearly all of the 15 submissions made by the Philippines and represented a major advancement in interpreting and clarifying the United Nations Convention on the Law of the Sea. On top of that, China's fishing moratorium in the South China Sea and damage of the environment in the waters also received unfavourable reviews.

After the release of the arbitral award, Chinese officials immediately called the document just a “piece of paper” and, as committed before, did not recognize the outcome of the proceedings.

Red dashed line is the "Cow - Tongue" area
Red dashed line is the "Cow - Tongue" area

At a glance, the South China Sea seems “serenity”. From the very belligerent attitude of sovereignty claims in the South China Sea, China has changed its approach. Whether it wants to or not and without recognition, China must also recognize that the ruling will become a model of international case law in the future. Therefore, China cannot stand up against international law and violate the ruling since by doing so, China will distort its image and jeopardize its interests, including its role in the international arena.

The Philippines reversed its field

A few days before the ruling came out, Rodrigo Duterte became the leader of the Philippines and later on determined to implement foreign policy on China in the opposite direction. The ruling of the arbitral tribunal that gave rise to unprecedented legal and ethical advantages for the Philippines in the dispute with China turned out to be impractical, and the relationship between the two countries was deepened. Duterte gave priority to teaching Filipinos how to love China, the country which has the potential to provide the Philippines with investments and loans. Thus, statements by the Philippines Foreign Ministry contained many placatory words and conduced to build a “good relation” with the neighborhood.

Rodrigo Duterte and Xi Jinping review the honour guard during the welcome ceremony at the Great Hall of the People in Beijing, China in 2016. Photograph: Pool/Getty Images
Rodrigo Duterte and Xi Jinping review the honour guard during the welcome ceremony at the Great Hall of the People in Beijing, China in 2016. Photograph: Pool/Getty Images

In the South China Sea, Duterte received tangible results - China allowed Filipino fishermen to approach near Scarborough Reef and the Philippines leader's visit to Beijing brought in $24 billion in loans, trading contracts and investments. For China, the dramatic result needed to get was that the parties concerned would not follow the Philippines.

In the past two years, the Philippines President Rodrigo Duterte's government has rarely made reference to the ruling and chose a diplomatic approach closer to Beijing instead. And two years after the ruling, the Philippines and China are now in talks.

China’s unilateral actions and “carrot and stick” approach

However, Beijing considered carefully the current condition because in today's world the truth does not necessarily belong to the strong. The status quo in the South China Sea continues to subtantially change in the past year. With the arbitral award, strategy of step by step legitimizing the rights in China's “cow – tongue” has fallen through. The attempt to militarize artificial islands could not change the current legal status and create a new legal status. And also, China cannot break international law by declaring the air defense identification zone in the South China Sea.

But if we look at other trends of the past two years, it becomes clear that the present state of serenity in the South China Sea is not only temporary, but also misleading. Militarization of the rocks, the process of building artificial structures continues.

US Defence Secretary James Mattis said there was little doubt about Beijing's intentions, "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. There are consequences that will continue to come home to roost, so to speak, with China, if they don't find a way to work more collaboratively with all of the nations who have interests", he said at the annual Shangri-La Dialogue in 2018.

In other words, peace in the South China Sea, if it is there, can hardly last. The underlying inconsistency remains unresolved.

China's action on Fiery Cross Reef. Photograph: Inquirer.net/Philippine Daily Inquirer
China's action on Fiery Cross Reef. Photograph: Inquirer.net/Philippine Daily Inquirer

The development of the South China Sea tension after two years seemed to be unpredictable. Many experts prognosticated a discernible shift in the South China Sea, where legal factors are enforced for compliance. The Award is the basis for explaining and clarifying the Philippines’ requirements, notwithstanding, when it comes to be applied to the practice in China there is no compulsory dispute settlement procedure. The Philippines has made a concrete move, but it totally shocked the world when it utilized the Award to negotiate with China.

Meetings and agreements between Manila and Beijing made the South China Sea more complex and unstable. For its part, China not only rejected the ruling, but also increased its disturbing actions in the South China Sea. As time went by, China tried to bury the issue altogether as if the arbitration proceedings never happened. Beijing's ambitions remain unchanged, they try to avoid referring to the ruling while using diplomacy to exert influence on countries in the region so that they do not put firm pressure on China.

"ASEAN states themselves must believe in the ruling and must not switch to cooperation with China as the Philippines did", said by Robert Beckman, the Head of Ocean Law and Policy Program, Center for International Law at the National University of Singapore.

The road to a practical mechanism for disputes settlement

Regarding the militarization in the South China Sea, the ruling did not prevent China from stopping illegal activities or even upgrading unlawful artificial islands in the Spratly islands. Besides, China made their moves when it and the ASEAN countries reached an important common perception of building a Code of Conduct (COC) of parties in the South China Sea towards a transparent and rule-based regional architecture. The Chinese moves undermine and hamper negotiation efforts to finalize the COC, which aims to create prerequisites for the settlement of the South China Sea tensions and maintaining peace, stability, security and safety of navigation and overflight in the region.

The 15th Senior Officials' Meeting on the Implementation of the DOC Held in Changsha, China (June, 29th, 2018).
The 15th Senior Officials' Meeting on the Implementation of the DOC Held in Changsha, China (June, 29th, 2018).

Concerning the negotiation of the COC, the 15th Senior Officials' Meeting on the Implementation of the DOC had a candid and in-depth exchange of views on the implementation of the DOC and enhancement of practical maritime cooperation and consultations on the COC in the South China Sea, achieving positive outcomes. All parties acknowledged and reiterated the importance of the comprehensive and effective implementation of the DOC, and agreed to move ahead the COC consultations based on the already established COC framework so as to produce a unified draft document at an early date which will act as the basis for next-stage talks.

Professor Carl Thayer reckoned that the US - China relationship was significant, in fact Washington could not force the ASEAN countries to do anything. In contrast, China can still divide ASEAN by use of the ASEAN principle of consensus. That means ASEAN should build capacity, consistency and be aware of the scope of the COC.

Hopefully the negotiation of the COC could lead to strengthened governance of the South China Sea. This could then build confidence and trust among coastal states, potentially leading to the establishment of strengthened governance arrangements to manage disputes.

To sum up, the arbitral award provided an opportunity for the countries concerned to cooperate on the resources, environment, freedom of navigation and overflight, and security in the South China Sea. Although the response of countries in the region to the Award is rather cautious, it should be regarded under a comprehensive view. Each country is trying to take advantage of all the opportunities the Award bring about to maximize their benefits and thereby, they are steadily changing the development of tension in the South China Sea.

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