China boycotted the proceedings, questioning the Court’s jurisdiction and publicly claiming historic rights to the South China Sea and its resources. The Court rejected this claim, concluding ‘there was no legal basis for China to claim historical rights to resources’.
In the absence of China exercising its right of defence, the Court was left with little alternative than to give an ex-partè ruling based on United Nations Convention of the Law of the Seas (UNCLOS), to which both China and the Philippines, but not the US, are signatories.
The Chinese Foreign Ministry in a defiant statement said ‘the award is invalid and has no binding force. China does not accept or recognise it’. Later the Chinese Assistant Foreign Minister reiterated China’s proclaimed right to declare an air defence identification zone (ADIZ) over the South China Sea. Whether or not China will implement an ADIZ, he said, depends upon the level of threat China faces.
Washington called upon countries bordering the South China Sea to avoid ‘provocative statements or actions’. In the Philippines, the change of presidency seems to have brought a new approach towards resolving the country’s differences with China. The Foreign Secretary welcomed the Court’s decision, urging ‘restraint and sobriety’ among all concerned. Earlier, he had indicated that the Philippines would be ready to enter into bilateral negotiations with China after the judgment over joint exploration of resources in the South China Sea. Yet the Philippines still expects China to respect the ruling. And the ruling’s strong wording puts limits on how far the Philippines can roll back its claims without inviting a domestic backlash.
The South China Sea covers an area of nearly four million square kilometres. US$5 trillion or one-third of total commercial shipping passes through the Sea every year, making it one of the most important trade routes in the world. The South China Sea is a resource battleground, with an estimated 11 billion barrels of oil and 190 trillion cubic feet of natural gas as well as 12 per cent of the global fisheries catch.
The Chinese claim over the South China Sea, represented by the so-called nine dash line, predates communist rule in Beijing. China is now accused of building 3200 acres of territory in the South China Sea through reclamation and island building efforts.
Though the ruling pertains to the Philippines–China dispute, it will bolster similar claims by other states against China’s nine dash line. It will also increase pressure on China to seek a negotiated resolution to the overlapping claims. Any other course will be damaging to China’s international standing.
China believes that the increased US presence in the Asia-Pacific region — now institutionalised under the ‘Pivot to Asia’ policy, launched in 2012 — is meant to contain China’s rise. Many analysts believe that tensions in the South China Sea would be easier to resolve if the US prioritised regional cooperation over individual security partnerships. The United States’ active diplomacy encourages Japan, India and, to a certain extent, Australia to participate in ‘freedom of navigation’ operations in the South China Sea. This fuels discord in the region.
The US views freedom of navigation as critical to its interests in the Western Pacific and essential for it to maintain a predominant role in the region. It is therefore concerned that China will impede freedom of navigation in the region. Yet China’s own economic rise depends upon freedom of navigation in the South China Sea; it will interfere in commercial shipping at its own peril.
China’s increasing assertiveness in the South China Sea is a natural consequence of its growing economic power and its need to secure its front yard. It would be folly to underestimate China’s tenacity in pursuit of its national interests.
It is highly unlikely that China will relent on its position and cede control of the islands Beijing now occupies within its nine dash line, despite the ruling. But China does not want to be seen as a bully in the region, and will likely accommodate other’s positions in bilateral negotiations. China’s ambitions need a friendly neighbourhood. It must assure the ASEAN member-states that its intentions are benign.
ASEAN countries face a serious dilemma in balancing their relations with both China and the United States. Perceived pressure from China will likely push smaller countries towards the United States.
As China is the major regional power, and has global ambitions, the onus is on it to take the lead in reducing tensions. This will mean working quietly behind the scenes to accommodate the interests of ASEAN member-states. After all, small economic concessions from China — the world’s largest economy in terms of real GDP — could mean big gains for the ASEAN countries. Together, Asia can rise peacefully.
Sajjad Ashraf is an adjunct professor at the Lee Kuan Yew School of Public Policy, National University of Singapore. He was a member of Pakistan Foreign Service, 1973–2008.
I fail to see how ‘China does not want to be seen as a bully’. Sinking fishing boats, destroying reefs, gunning down Vietnamese. Cutting cables. This is not very neighborly behavior, do you think? The rule of law does not apply to the CCP at home. The Chinese population is bullied so why not export that behavior to the “neighborhood” to Africa and everywhere the CCP goes. We are not dealing with the “Chinese” here, we are dealing with an insidious menace, the CCP.
At least China did not steal other country’s islands, reefs and shoal in the South China Sea like the Vietnamese and the Philippines did.
Some Vietnamese scholars claim that Vietnam had controlled over the Paracel and Spratly islands since the 17th century.
The problem with this claim is that Vietnam as a country did not exist in the 17th century.
Only in 1802 was the peninsular named Vietnam for the first time by Emperor Gia Long, when he ascended the throne, after defeating the rebels from the North.
If you want to know who sank the most fishing boats look no further than Indonesia. So far they sank 600 fishing boats, mostly from Vietnam and the Philippines. Get your facts right.
And it’s equally true that the PRC was not declared until 1949 and had no ability to assert any claims let alone administer these waters until recently, but do all facts matter?
In the 1952 Treaty of Peace, under the terms of the 1945 Potsdam Declaration and 1943 Cairo Conference Statement, Japan returned the Spratly and Paracel islands to the Republic of China (ROC), by extension to the PRC, under the one-China policy recognised by all 10 Asean nations, US, Japan, Australia, UK, EU, Russia, etc.
If there is any doubt that Japan had transferred to sovereignty of the Territories back to the ROC, the text of the Cairo Conference statement made by President Roosevelt, General Chiang Kai-shek and Prime Minister Churchill in Nov 1943 was very clear:
“The three great Allies are fighting this war to restrain and punish the aggression of Japan. They covet no gain for themselves and have no thought of territorial expansions. It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that ALL the territories Japan has stolen from the Chinese, such as Manchuria, Formosa [Taiwan], and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from ALL other territories which she has taken by violence and greed.” (Emphasis mine).
China is already working quietly, not so much behind the scenes, with economic development aid and loans to ASEAN member countries. Thus, Cambodia recently nixed even a relatively mild statement of concern about SCS related issues by ASEAN. Per another East Asia Forum piece the PRC is negotiating with the Philippines over projects to build railways in the latter. Will this lead to Duterte softening his country’s opposition to the island/territorial issues?
Of course, the USA plays this influence peddling game as well with its offers of economic aid and security alliances.
I agree that Asia ‘can rise peacefully.’ But it will take patient and balanced, constructive leadership to at least reduce, if not eliminate, these episodes of conflict. Not an easy challenge when leaders stir up nationalistic passions in order to suit their domestic political interests.
Another interesting analysis but there are factual errors.
1 It is not true that the Permanent Court of Arbitration made the ruling against China.
It was the ad hoc arbitral tribunal which made the ruling, under Unclos Annex VII.
The PCA is not a court at all. It ONLY provides a venue and assistance to arbitral tribunals to resolve specific disputes between two parties.
Mr Stephane Dujarric, the UN spokesman, for Ban Ki Moon, confirmed that the PCA, like the ICJ, “is a tenant of the Peace Palace in the Hague, but (it) has nothing to do with the UN”.
The ICJ, is a UN organ set up in 1946 and it is a court but not the PCA.
2 “The Chinese claim over the South China Sea, represented by the so-called nine dash line..”
Not true. According to Dr Sam Bateman, a former Australian Naval Commodore with research interests in regimes for good order at sea, “the U-shaped line is a “loose geographical shorthand to say we claim islands and features, it is not actually questioning other countries who have established exclusive economic zones inside the nine dash line, or indeed have maritime boundaries with their neighbor.”
The nine-dash line is therefore only an informal ‘boundary’ that separates China’s island territories in the South China Sea from the coasts of littoral states like Vietnam, Malaysia, Brunei and the Philippines.
As a signatory of Unclos, China can only claim a 12 nm territorial water and a 200 nm EEZ. China cannot claim “most of the South China Sea”.
China’s sovereignty over the Spratly and the Paracel islands was not disputed by the tribunal or the Philippines for, inter alia, the following reasons:
a)In the 1887 Sino-Franco Convention, concerning the Delimitation of the Border Between China and Tonkin, signed in Beijing on 26 June 1887, it stated clearly that all the isles, East of the Treaty delimitation line, were assigned to China and that included Hainan, Pratas, Paracel and the Spratly Islands, Macclesfield Bank and Scarborough shoal.
This Treaty has not been abrogated as the China-Vietnam Land Border Delimitation Treaty was signed on 30 December 1999, based largely on the 1887 and 1895 Sino-Franco Conventions. And on 30 June 2004, China and Vietnam ratified the Maritime Boundary Agreement for the Tonkin Gulf (Beibu Gulf).
b)In the 1952 Treaty of Peace, under the terms of the 1945 Potsdam Declaration, Japan already returned the Spratly and Paracel islands to the ROC, by extension to China, under the one-China policy recognised by Asean, US, Japan, Australia, etc.
c)Also the 1898 Treaty of Paris, the 1900 Treaty of Washington and the 1930 Convention between the United States and Great Britain, described the western limit of the Philippine territory as 118 degrees East longitude. China’s Spratly, Paracel and Scarborough shoal are located West of that longitude.
3 “ASEAN countries face a serious dilemma in balancing their relations with both China and the United States.”
The good news is that at the 25 July Asean-China dialogue in Vientiane, they agreed to abide by the DOC and to settle the South China Sea disputes peacefully.
The arbitral ruling was not even mentioned. It was, metaphorically speaking, thrown out of the window.
The other good news is that President Duterte has appointed an envoy to hold talks with China as he, a lawyer, intuitively knows that there was a shenanigan in the way the arbitration was hijacked by the United States for its own nefarious agenda which will only pave the way for endless wars and more poverty for the Philippines for decades to come.
As Deng Xiaoping once said “To be rich is glorious”
President Duterte is now an avid disciple, because the Philippines needs modern infrastructures, industrial parks, high-tech factories and millions of well-paid jobs to create prosperity. China can provide all that if there is friendship and investor confidence.
The last things the Philippines needs are more bombs from Uncle Sam and endless wars.
More of my comments here:
http://www.eastasiaforum.org/2016/07/25/assessing-the-damage-the-south-china-sea-arbitration/