, there is so far no sign that China is overreacting to the ruling. China has also been quite conciliatory towards the new presidential administration in the Philippines.
The Philippines reacted cautiously in its statement on the ruling and has expressed a desire to mend ties with China, including appointing a former China-friendly president as a special envoy to perhaps begin a bilateral negotiation process. Similarly, both Vietnam and Malaysia were careful, affirming respect for international law and diplomacy, but refraining from directly urging China to accept and follow the ruling. Even the United States and Japan urged the relevant parties to refrain from provocative actions and statements.
Against this backdrop, the outcome of the ASEAN Foreign Ministers’ Meeting in Vientiane in late July also complied with the pattern of restraint. The joint communique of the 49th ASEAN Foreign Minister Meetings did not mention the ruling at all and did not single out China. It does mention that ASEAN remains ‘seriously concerned over recent and ongoing developments’, and that ‘the land reclamations and escalation of activities in the area’ have ‘eroded trust and confidence, increased tensions and may undermine peace, security and stability in the region’.
The exclusion of the PCA ruling in the joint communique seemed to be the consensus for all the participating ASEAN foreign ministers except the Philippines. But even the Philippines did not strongly push for its inclusion. After the release of the joint communique, a second joint statement was issued together with China, in which both sides agreed to exercise self-restraint over activities that would ‘complicate or escalate disputes and affect peace and stability’. US Secretary of State John Kerry also encouraged the new Philippines leader Rodrigo Duterte to have bilateral talks with China over the South China Sea issue.
The pattern of calmness and mutual restraint perhaps surprises those analysts who forewarned that the ruling would destabilise the region. That ASEAN is taking a lead in exercising restraint — apparently without evident Chinese influence this time — may also surprise those who have urged ASEAN to take a stronger, more assertive and united stand against China. After all, the ruling seems to provide an excellent position to make a collective stand.
But so far, the management of the aftermath of the ruling is quite encouraging. Hopefully this pattern of restraint can be sustained.
In short, what we are witnessing after the ruling may be the tantalising signs that there is an emerging consensus on the South China Sea issue between China and ASEAN.
What would this emerging consensus look like?
First, provocative actions and statements lead nowhere. For China and for ASEAN, the tension around the South China Sea in the past few years benefited no one. Chinese hawkish nationalists may suggest otherwise, but the damage that the South China Sea issue has done to China’s image and diplomacy has been enormous, depleting much of the goodwill that China accumulated in the first decade of the 21st century.
Similarly, ASEAN countries benefited very little — symbolically and substantially — from a policy of confronting China. It is time for both sides to recognise that provocative actions on one side are unlikely to deter the other side from taking a more assertive stand. Rather, these actions tend to empower the ‘hawks’ on the opposing side and feed their own nationalistic narratives.
Second, bilateral negotiations may increasingly be seen as a viable option. China’s ‘dual-track’ approach suggests that management of the South China Sea issue should be pursued at the multilateral level. It is the other track — the Chinese position of using the bilateral approach for resolving territorial disputes — that creates suspicions that China could exploit ASEAN claimant states from a position of vast strength. But this suspicion is not evident in recent history. China has successfully negotiated and resolved boundary issues bilaterally with many of its neighbouring countries, including the China–Vietnam maritime boundary demarcation in the Beibu Gulf (Gulf of Tonkin).
Third, the aforementioned multilateral approach in managing the South China Sea dispute, which is manifested in the Declaration on the Conduct of Parties (DOC) and the still-being-negotiated Code of Conduct (COC), remains the most viable medium-term tool to prevent the South China Sea issue from escalating. This remains the common denominator between ASEAN and China.
In China’s view, its refusal to accept the ruling is consistent with international law and its own image as a rule follower, since it made a declaration in 2006 to exclude itself from the compulsory dispute-settlement proceedings of the United Nations Convention on the Law of the Sea.
But, if China’s actions were found and shown to be violating the terms in the DOC (or the future COC), then perhaps China may be more amenable to changing its actions.
Capitalising on China’s own rhetoric on multilateral management and DOC, and allowing China to commit to it, could be a more effective — and less provocative — way for ASEAN to deal with China on this issue.
Ngeow Chow Bing is Deputy Director of the Institute of China Studies at the University of Malaya.
Another interesting article. The 12 July ruling came not from the PCA but from an ad hoc arbitral tribunal constituted under Annex VII of Unclos.
Unlike the International Court of Justice, (ICJ), which is a UN organ formed in 1946, the PCA is not a court. It provides a registry and secretarial assistance to “arbitral tribunals constituted to resolve specific disputes” for a large fee.
There was also media confusion whether the tribunal is UN-backed. The kerfuffle ended when UN spokesman, Stephane Dujarric, confirmed that the PCA is only a “tenant” of the Peace Palace in the Hague, “but has nothing to do with the UN”.
The confusion arose because the ICJ is also located at the Peace Palace at the Hague.
It is significant that neither the Philippines nor the Tribunal challenged China’s sovereignty over the Pratas (Dongsha), Paracel (Xisha) and Spratly islands (Nansha) Islands or the Macclesfield bank (Zhongsha) and Scarborough Shoal (Huangyan dao) (Herewith called ‘the Territories’).
And also none of the colonial invaders like Spain, US, Britain, Holland and France disputed China’s sovereignty over the Territories.
In the 1887 Sino-Franco Convention, France agreed that all the isles, east of the Treaty delimitation line, were assigned to China. That included the Territories.
In the 1898 Treaty of Paris, signed when Spain handed the Philippines as a colony to the United States, Article III described the western limit of the Philippines as 118 degrees East longitude. The Territories of China are all located west of that longitude.
The Philippines wanted to annex the Spratlys as early as 1933. On 20 August that year, US Secretary of State Cordell Hull wrote that, “the islands of the Philippine group which the United States acquired from Spain by the treaty of 1898, were only those within the limits described in Article III”, and “It may be observed that no mention has been found of Spain having exercised sovereignty over, or having laid claim to, any of these (Spratly) islands”.
British professor, John Carty, said “British record proves there is no dispute regarding the Spratly Islands and that China is the sole titleholder.”
But on 11 Nov 1978, President Ferdinand Marcos, illegally annexed 8 features in the Spratlys, under pretext of terra nullius, using presidential decree 1596 and renamed them the Kalayaan Island Group.
Yet, China acted with restraint and wanted to settle the so-called “disputes” by negotiation under the DOC. The Arroyo administration agreed but Aquino, under Uncle Sam’s tutelage, took the ”disputes” for arbitration in Jan 2013, after Obama’s infamous pivot to Asia. Aquino wasted US$30 million, which could have been better spent to alleviate the plight of the millions of poor people in the Philippines.
Asean has finally come to a consensus and the realization that boundary issues cannot be solved by lawfare.
For a lasting peace in the South China Sea, delimitation issues have to be solved by bilateral negotiations between the states concerned, as China and Vietnam did over their maritime delimitation in the Gulf of Tonkin, on 30 June 2004.
To date, China has also settled 12 of 14 border issues with her neignbours.
It is reassuring that up to now none of the parties have engaged in more provocative statements and/or actions in regards to the SCS. But I think that it is still very early in the process to claim that a consensus might be emerging.
This piece fails to note that China’s offer of support for the Philippines desires to build a high speed rail line is very relevant indeed. Is China proving that,as with human nature, every country has its price for which it will compromise its claims?
It also fails to note that China just this week has been sending a large number of ships into the region that the Japanese call the Senkaku Islands. And it installed radar and camera equipment on one of its oil/gas rigs in the area that the two countries are supposed to share. So, is it pushing somewhere else while restraining itself, for the time being, in the SCS?
This game of cat and mouse will continue for a long time to come.