One Year after the PCA Tribunal Judgment on the South China Sea
by Prof. Baladas Ghoshal*
July 12, 2016, otherwise, may not have any special claim in history, but it will surely be remembered for the historic judgement by the Permanent Court of Arbitration (PCA) Tribunal on the South China Sea Dispute, upholding a rule-based maritime order anchored in the United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention, that defines the rights and responsibilities of nations with respect to their use of the world’s oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources, and the perfidy of China for rejecting a legal judgement. The PCA Tribunal had nullified Chinese claims on practically the whole of South China Sea and its so-called historical rights and 9-dash line, pointing out that Beijing had no entitlement to an exclusive zone within 200 miles of the Spratly Islands. The judgement also indicted Beijing for destroying marine ecology and environment by establishing artificial islands and militarizing them for bolstering its claims. The PCA ruling is undoubtedly a victory of a 21st century rules-based order over China’s 19th-century plans for its own sphere of influence.
By rejecting so many of the assumptions that underpinned Beijing’s claims in the South China Sea, the tribunal has put it on the spot. If China further continues occupying reefs and developing them into potential military bases-a process that has accelerated since 2014- it will be acting outside the bounds of international law, and UNCLOS, of which it is a signatory. In a bid to nullify the international tribunal’s verdict China’s Supreme Court (SPC) soon issued a regulation reaffirming the country’s jurisdiction over its territorial seas warning foreigners of criminal liability for violations of its sovereignty, trying to provide a false legal cover to China’s maritime claims over almost all of the South China Sea.
A year has passed since then and within this period, Beijing, through its military and economic muscle has brought about an ominous shift in the geo-political and maritime environment in the South China Sea by consolidating its position by equipping those artificial islands with military installations and silencing even the claimant states, except Vietnam, not even to mention the tribunal judgement either in their dealings with China or in the deliberations and statements of ASEAN. The greatest irony is that the country, namely the Philippines, that took China to the tribunal and for whom the judgment was a victory of its position, is now cow-towing before Beijing, forgetting the interests of its own poor fishermen and pride of the nation. President Duterte is now bank-rolled by China, turning him into a great apologist for Beijing, and presently carrying on bilateral negotiations with China to the disappointment of other more vocal critic of China among the ASEAN countries. As the current Chair of ASEAN, Manila is compelled to ensure that the ‘core interests’ of Beijing are ensured.
Beijing has also been attempting to pre-empt any discussion or a dialogue on the claims of other ASEAN countries by taking a new diplomatic initiative, probably pushed for South China Sea littoral states to establish a new cooperation mechanism, based at Boao, on Hainan Island to discuss non-traditional security issues related to the South China Sea. This mechanism will be outside the ASEAN-based security architecture and will be China-led. And in any China-led initiative there is no hope of any fair or legitimate dialogue on the status of the South China Sea.
China has rubbished the Tribunal judgment and has been trying to portray it as inconsequential, but it surely had an impact, though minor, on Beijing’s latest White Paper, which, while taking a tough stance on the South China Sea issue by claiming it is an issue of China’s sovereignty and “maritime rights and interest”, warning all not to “internationalise and judicialize” the issue, surprisingly, it does not mention China’s nine-dash line, referring only to “China’s indisputable sovereignty over the Nansha Islands and their adjacent waters”. At the same it has refrained from strong rhetoric on the issue and speaking of amore “diplomatic” approach rather than the aggressive one that it used to take earlier. It has also agreed to promote dialogue and settling the dispute through peaceful means, though in its own terms, China on May 18th together with ASEAN agreed on a framework for a “code of conduct”, but its terms have not been made public as yet, asit will be presented to foreign ministers in August, and will form the basis for future negotiations. A draft version from March talked about “promot[ing] mutual trust”, a “duty to co-operate” and “self-restraint”, familiar phrases as it was in the 2002 Declaration. The DOC failed to restrain China. Like the Declaration, this framework appears to lack any enforcement mechanisms or consequences for violating any of the (potential) code’s terms. To quote Economist: “This framework lets China look co-operative without having to constrain its behaviour”. The COC will have a better chance to succeed if parties take advantage of the improved legal clarity arising from the ruling, which has set the template on maritime engagement in the seas and for a rule-based maritime order. Abiding by rules set by UNCLOS would enable all countries to have peace and stability in the region.
In the meantime all major and like-minded countries, the United States, Australia, Japan and India, stakeholders in the freedom of navigation, overflight, uninterrupted trade, peace and stability in the region, have urged Beijing to abide by the ruling. On July 25, 2016, the three countries issued a joint statement after their annual trilateral strategic dialogue, declaring 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. Again in June 2017, at the Shangri-La Dialogue in Singapore, Defence Ministers from Australia, Japan, and the U.S. reiterated their support for the UNCLOS and international arbitration, particularly the U.S. Defense Secretary James Mattis asserted: “The 2016 ruling by the Permanent Court of Arbitration on the case brought by the Philippines on the South China Sea is binding”.
India’s position on the SCS is also quite similar to US, Japan and Australia. At the 5th East Asia Summit foreign ministers’ Meeting in Kuala Lumpur wherein V K Singh, the junior foreign minister, reiterated the now well-known Indian position on the South China Sea dispute. Singh told the conference that territorial disputes must be settled through peaceful means “as was done by India and Bangladesh using the mechanisms provided under UNCLOS”. India supports freedom of navigation and over flight, and unimpeded commerce, based on the principles of international law, as reflected notably in the UNCLOS and believes that states should resolve disputes through peaceful means without threat or use of force and exercise self-restraint in the conduct of activities that could complicate or escalate disputes affecting peace and stability. “As a State Party to the United Nations Convention on the Law Of the Sea (UNCLOS), India urges all parties to show utmost respect for the UNCLOS, which establishes the international legal order of the seas and oceans.” The statement indicated that New Delhi recognises the ruling from the Permanent Court of Arbitration (PCA) and will uphold it. Another indication of India’s position on the issue is that ONGC Videsh Ltd, the overseas arm of Oil and Natural Gas Corp (ONGC), sought a two-year extension to explore a Vietnamese oil block located totally in the EEZ of Vietnam in the South China Sea and has got recently, the fifth extension for OVL to explore Block-128, the licence for which is now valid till June 15, 2019.
China has imposed a ‘hegemonic peace’ on South China Sea, but the real peace can come only if Beijing accepts the PCA ruling and acts accordingly.
*Prof. Baladas Ghoshal is Secretary General, Society for Indian Ocean Studies; Former Professor and Chair in Southeast Asian Studies, JNU