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South China Sea Ruling: The Need for a Firm Stance
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The South China Sea arbitration case (PCA case no. 2013-19, decided by the United Nations Convention of the Laws of the Sea (UNCLOS)) in 2016 concerning the issues of claim over the South China Sea and also to contest the legality of China’s self-proclaimed “nine-dotted line”) remains far from being implemented even after one year since the ruling was first passed. China’s non-acceptance of the ruling and its implications raise serious questions about the implementation of international laws. As UNCLOS does not enumerate enforcement powers, it falls on the G7 nations to provide principled and peaceful opposition to China’s activities in the South China Sea.

Apart from being a major shipping route with an estimated $5 trillion in trade passing through the South China Sea waters, reports by the World Bank state that the region holds oil reserves of at least 7 billion barrels and 900 trillion cubic feet of natural gas (Xu, 2014). This makes it widely contested, with many nations competing to take control. There have been violent clashes over the South China Sea issue between China and Vietnam, both in the Battle of Paracel Islands in 1974 and later, in 1988. Thus, control of the South China Sea is currently the most contentious issue in Asian waters with China, Vietnam, the Philippines, Taiwan, Malaysia, and Brunei all competing for control of the territory. China is simultaneously backing its own claims with naval operations and building its own artificial islands in the disputed area, with permanent features, including airfields and military facilities. In light of these developments, what are the implications for the tribunal’s ruling?

The tribunal’s first finding was that China cannot legally claim any historic rights over the resources within the sea falling under the nine-dash line. It also interpreted Article 121 of the UNCLOS, which defined and classified an island and a rock. By defining what constitutes an island, an international standard has been set as to what constitutes a land feature. As analysed by Fravel, this would likely impact claims by nations other than China, including Japan, which claims an exclusive economic zone (EEZ) from the Okinotorishima coral reefs that consists of three rocks above high tide, and the United States, which claims an EEZ from the Kingman Reef in Micronesia (Fravel, 2016).

Although an international ruling against China’s unfounded claims goes a long way in establishing a united front against unjustified claims of dominance, it is the implementation of the ruling that raises relevant questions. Chinese officials have already refused to recognize or accept the award by the tribunal. The tribunal panel itself has been criticized as being a farce played out by the United States and Japan with the Philippines as their puppet state, based on the fact that the panel was appointed under Shunji Yanai, who was the head of UNCLOS and former Japanese ambassador to the United States.

For now, China’s aggressive moves continue uninhibited as it conducted a joint-naval exercise with Russia in the South China Sea in September 2016 (Lendon & Hunt, 2016). China also claimed the artificial reefs it constructed to be recognized as Chinese territory. In the face of China’s blatant disregard for UNCLOS, the United States could have taken a firm stance against China by continuing normal operations in the contested waters through Freedom of Navigation Operations (FONOPs). However, the Department of Defense’s (DoD) annual Freedom of Navigation report indicates that the FONOP operations conducted by the Obama administration were done by transiting in innocent passage The mention of “innocent passage” indicates a tacit acceptance of Chinese transgressions (Bosco, 2017).

In 2017, the G7 (Group of Seven, comprised of the seven advanced world economies) nations expressed its unified stand with UNCLOS and called for the finalization of a Code of Conduct (COC) in the South China Sea and the implementation of this declaration by the members of the ASEAN. However, the recent ASEAN summit in April, 2017 in Manila avoided any references to China’s encroachment and militarisation of the islands in South China Sea (Blanchard & Mogato, 2017). ASEAN’s lax stand comes in light of President Duterte’s defence of China in the 30th ASEAN summit where he stated that the dispute was between Philippines and China alone and therefore, there was no requirement of discussion on the issue (Tarrazona, 2017). A draft framework agreement on Code of Conduct between China and the ASEAN countries might seem like a way forward but given ASEAN’s weak stance against China, the actual effectiveness of such a code remains to be seen. Meanwhile, Philippines is placed at an interesting position between the two big powers, US and China, where it seems to have resorted to hedging, defined by Cheng- Chwee Kuik as, “insistence on non-alignment to any one side and pursuing contradictory and mutually counteracting measures in order to mitigate the broader risks stemming from uncertainty and ensure a fall back plan” (Kuik, 2008).

Robert Kaplan, a former foreign correspondent and noted political author, once termed the South China Sea as the military frontline of the coming decades and the Asian Cauldron (Kaplan, 2011). It appears that his realizations were not entirely off the mark. The issue of South China Sea has revealed the powerlessness of the ASEAN countries, China’s continued disregard for international law and a new emerging order in South East Asia as the Trump administration concentrates its efforts on threats from North Korea. Under current circumstances, it is imperative that the global community take a firm stance on the issue to ensure that the disregard for international law does not continue to be unchecked. The United States and other G7 nations should lend institutional and financial support to the ASEAN members so they can take a common stance against China. Meanwhile, the G7 should also engage in constructive dialogue with Beijing to give a unified stand on China’s flouting of international laws. It should be communicated that violation of international law could also signify loss of legal protection to China under the same laws. It is time that the global community take cognizance of the issue by directly addressing the concerns that arise from China’s actions.

Apala Chaturvedi is a law student with an interest in international law and policy. She is currently a fellow in the Young India Fellowship program in India.

 

BIBILIOGRAPHY:

Paul Gewirtz. “Limits of Law in the South China Sea”. The Brookings Institution: Center for East Asia Policy studies. East Asia Policy Paper 8. (2016).

The author has examined the history of disputes over the South China Sea area focusing majorly on the legal aspects. The paper focuses on the core issues which gave rise to the dispute, the claims made by Philippines, the recent developments and interference by the US. More specifically, the paper analyses why the ruling in the case brought by the Philippines against China before an arbitration tribunal under the U.N. Convention on the Law of the Seas (UNCLOS) will not solve the problems or even make major headway in resolving them.

Jon Lunn and Arabella Lang. “The South China Sea dispute: July 2016 update”. House of Commons Library. Briefing Paper Number 7481. (2016)

This paper gives us an overview of the dispute while focusing on the developments throughout the years. The developments in each specific year are examined in great detail. It also covers the international law disputes arising from the issue and the future prospects of the problem. The main thesis is centred on UK’s stance on the issue and how any future developments possess the capability of a global impact.

Dr. Emmanuel Yujuico. “The real story behind the South China Sea dispute”. International Affairs, Diplomacy and Strategy in LSE Ideas. (2016)

The paper focuses on the military developments in the countries involved in the dispute, the impact on trade because of the persisting issue and also, China’s general resentment towards the US for their continuing interference in the matter. As the title states, the major thesis is to explore the truth behind the ongoing negotiations, causes and any possible solutions, if any, that exist.

Blanchard, Ben and Mogato, Manny. “China welcomes ASEAN summit declaration on South China Sea”. Reuters.  (May, 2017). Retrieved online from: http://www.reuters.com/article/us-asean-summit-china-idUSKBN17Y0SL (Accessed on May, 2017)

Bosco, Joseph. "US FONOPs Actually Conceded Maritime Rights to China." The Diplomat. March 08, 2017. Accessed May 25, 2017. http://thediplomat.com/2017/03/us-fonops-actually-conceded-maritime-rights-to-china/.

Callar, Michaela del. "China's new '10-dash line map' eats into Philippine territory". GMA News. (2013). (Accessed on November, 2016). Retrieved from: http://www.gmanetwork.com/news/story/319303/news/nation/china-s-new-10-dash-line-map-eats-into-philippine-territory

Cheng-Chwee, Kuik. “The Essence of Hedging: Malaysia and Singapore's Response to a Rising China.” Contemporary Southeast Asia, vol. 30, no. 2, 2008, pp. 159–185. JSTOR, www.jstor.org/stable/41220503.

Fravel, M. Taylor. “The Strategic Implications of the South China Sea Tribunal’s Award”. The National Interest. (July, 2016). Retrieved from: http://nationalinterest.org/feature/why-the-south-china-sea-tribunals-ruling-may-backfire-16951 (Accessed on November, 2016)

Graham, Euan. Lowy Institute for International Policy. (August, 2016). “The Hague Tribunal’s South China Sea Ruling: Empty Provocation or Slow-Burning Influence?” Retrieved from: http://www.cfr.org/councilofcouncils/global_memos/p38227 (Accessed on November, 2016)

IANS. "Cambodia not to support decision over South China Sea issue: PM". Retrieved from: http://www.business-standard.com/article/international/cambodia-not-to-support-decision-over-south-china-sea-issue-pm-116062800154_1.html (Accessed on November, 2016)

Indian Express. “South China Sea dispute: All you need to know”. (July, 2016). Retrieved from: http://indianexpress.com/article/explained/south-china-sea-dispute-all-you-need-to-know-explained-philippines-international-court-verdict-world-news-2909187/ (Accessed on November, 2016)

Kaplan, Robert D. "The South China Sea Is the Future of Conflict." Foreign Policy. N.p., 15 Aug. 2011. Web. 11 May 2017.

Lendon, Brad & Hunt, Katy. “China, Russia begin joint exercises in South China Sea”. CNN. (September, 2016). Retrieved online from: http://edition.cnn.com/2016/09/12/asia/china-russia-south-china-sea-exercises/ (Accessed on May, 2017)

Marcus, Jonathan. "US-China tensions rise over Beijing's 'Great Wall of Sand'". BBC. (May, 2015). Retrieved from: http://www.bbc.com/news/world-asia-32913899 (Accessed on November, 2016)

Rosenfeld, Everett. “Sweeping ruling against China will have lasting impact globally”. CNBC. (July, 2016). Retrieved from: http://www.cnbc.com/2016/07/12/south-china-sea-breathtaking-ruling-against-china-to-have-lasting-impact.html (Accessed on November, 2016)

Sukumar, Arun Mohan. “South China Sea Case: A Guide to the Verdict.” The Wire. (July, 2016). Retrieved from: http://thewire.in/51045/the-hague-verdict-is-a-big-victory-for-the-philippines-but-not-for-the-south-china-sea-dispute/ (Accessed on November, 2016)

Tarrazona, Noel. “Duterte Defends China at ASEAN Summit”. The Maritime Executive. (April, 2017). Retrieved online from: http://www.maritime-executive.com/article/duterte-defends-china-at-asean-summit (Accessed on May, 2017)

The Hindu. “What is the wider impact of the South China Sea ruling?” (August, 2016). Retrieved from: http://www.thehindu.com/todays-paper/tp-in-school/what-is-the-wider-impact-of-the-south-china-sea-ruling/article8856474.ece (Accessed on November, 2016)

"The Republic of the Philippines v. The People's Republic of China". Permanent Court of Arbitration. Retrieved from: https://assets.documentcloud.org/documents/2990864/Press-Release-on-South-China-Sea-Decision.pdf  (Accessed on November, 2016)

Xu, Beina. “South China Sea Tensions”. Council on Foreign Relations. . (May, 2014). Retrieved online from: https://www.cfr.org/backgrounder/south-china-sea-tensions (Accessed on May, 2017)

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