The 2016 international arbitration court ruling on the South China Sea was hailed as a major breakthrough as China’s extensive maritime territorial claims (the nine-dash line) were categorically deemed invalid. Yet the impact of the ruling on the ground has so far been limited and non-compliance might spell troubles for international dispute settlement mechanisms, experts have said.

by Trọng Kiên

HÀ NỘI — The Hague-based international arbitration court announced on July 12, 2016, a landmark ruling that dealt a significant legal blow to China’s sweeping claims over most of the South China Sea (called the East Sea in Việt Nam).

At the time, expectations were high that the tribunal’s ruling, in a case initiated by the Philippines over China’s aggressive attempts to prevent Filipino fishermen from fishing off the waters of the Scarborough Shoal since 2012, would have a great impact and possibly lead to a permanent settlement of tensions.

The “final and without appeal” verdict of the arbitral tribunal, set up under Annex VII of the United Nations Convention on the Law of the Seas (UNCLOS 1982), states that all of the maritime features in the Trường Sa (Spratly) archipelago are not technically islands and therefore cannot be used to make maritime territorial claims — specifically, the 200-nautical-mile Exclusive Economic Zone that extends into the waters off national coastlines. If the ruling were fully observed, it would reduce the overlapping maritime areas claimed between the six countries in the dispute, which in turn might quicken negotiations.

In addition, many thought the ruling would thwart China’s ambitions in the contested waters and would pave the way towards a peaceful settlement.

However, two years on, the South China Sea issue doesn’t seem to have cooled down. Instead, it has become progressively more complicated, if not to say, deteriorated.

On the ground, reports from various watchdogs pointed to China’s renewed intensity in militarising the islands it claims in the South China Sea – building new bases, upgrading runways and hangars, as well as deploying surveillance systems and what amounted to electronic warfare equipment on Spratly maritime structures. Live fire drills and the deployment of missiles and bombers by the Chinese navy have also been reported, drawing criticisms from other countries involved in the South China Sea dispute, including Việt Nam and the Philippines, who accused China of “complicating the dispute”.

The tribunal award also “has not moved the situation as far as the dispute is concerned any nearer to a resolution, nor even is the completion of the Code of Conduct (COC) between ASEAN and China on the South China Sea any closer,” wrote Assoc. Prof. Herman Kraft, from the University of Philippines’ Department of Political Science, in a correspondence with Việt Nam News.

On the legal front, China has been consistently adamant in its rejection of the ruling since the day the tribunal was set up to hear the Philippines’ case, calling both the tribunal process and the final award “null and void”.

Power play

China’s predicted reaction “undermined not only the legal basis for good order at sea but also its credibility as a major power that respects international law,” Emeritus Professor Carlyle Thayer from the University of New South Wales, Australia, a noted commentator on South China Sea issue, told Việt Nam News.

“China participated in the international negotiations that led to the adoption of UNCLOS and by its actions is now in breach of its legal obligations. This is a serious matter as UNCLOS is widely regarded as the Constitution of the world’s seas,” Thayer said, adding that Chinese realpolitik “is not different from past imperial powers” while China has repeatedly played the card of being a victim set upon by hostile Western powers.

He commented that aside from the militarisation of seven artificial islands, China has “pressured and coerced littoral States into acquiescing to China’s sovereignty claims”, which eventually drove other claimant countries to increase arms purchases and “support the naval presence of non-claimant countries such as the United States and Japan”.

As a case in point, Japan said it welcomed the tribunal ruling. In early July, Japan announced it would conduct a large helicopter tour over the South China Sea as part of its growing involvement in the area, ostensibly aiming to maintain freedom of navigation amidst unease about China’s territorial assertions.

A highlight in the series of high-level visits between Japanese and Vietnamese leadership in the last few years has been a consensus on “settlement of disputes… strictly abiding by international law, especially UNCLOS 1982,” and by extension, the 2016 ruling.

The US, despite President Donald Trump’s isolationist rhetoric, remains the “principle challenger” to China’s claims and activities in the resource-rich sea, evidenced by increased patrolling and continued “freedom of navigation operations” (FONOPs) especially around the artificial islands, Prof. Herman Kraft said, adding that the US constitutes the main roadblock in China’s ambition to “reorder East Asia relations”.

He argued that the US, Australia or Japan’s actions were the primary way by which the arbitral decision is being enforced, as there is no enforcement mechanism provision contained in the UNCLOS.

Fishermen from Hoài Nhơn District of the coastal province Bình Định on an offshore fishing expedition in the South China Sea (called the East Sea in Việt Nam). — VNA/VNS Photo Phạm Kha

According to Kraft, reports of Filipino fishermen’s activities “being ‘taxed’ by the Chinese Coast Guard serves as a constant reminder that fishing activities in the area [Scarborough Shoal] are only being conducted at the sufferance of China”. This indicates the status quo is an unsustainable “peace”, which President Rodrigo Duterte’s Government has been working to achieve in the interest of good economic and political relations with China at the expense of territorial claims.

It should be noted that in case any party unilaterally uses force in the South China Sea to achieve greater control of the maritime areas, the international community – even including non-claimant States – is permitted, by international law, to respond by appropriate means (mostly sanctions) to transgressions of erga omnes, or the universal obligation which a State owes to the “international community as a whole”, wrote Constantinos Yiallourides for The Diplomat.

Trần Công Trục, former head of Việt Nam’s Government border committee, in a recent article, had the same conclusion that a third-party interference was possible by international law as Beijing’s activities in the South China Sea has gone beyond self-defence to near the realm of invasion.

The ruling’s future

Many have expressed frustration and restlessness with the Philippines’ incumbent Duterte administration’s lethargy in leveraging this clear legal win to its advantage, resulting in Filipinos’ fears that the country’s claims to land features in the South China Sea will be weakened irreparably. Worse still, the award might fall into irrelevance.

Prof Kraft from the Philippines conveyed a concern shared by the Filipino scholars in general that “being reticent about Chinese actions, and lack of action on the arbitral decision, is detrimental to the South China Sea issue, as well as hinders the prospect of any future resolution”.

However, it’s important to note that the Duterte administration has not completely renounced the tribunal ruling but only put the implementation of the ruling on hold, in exchange for economic co-operation with China.

“It is possible that the current Philippine government or a new administration could change policy and raise the implementation of the award with China, ASEAN and the United Nations. Such action would then provide a legal basis for the United States and other major power to support the Philippines,” Prof Thayer said.

The award of the arbitral tribunal is now part of international case law, which means it will be used as a reference or legal ground to settle maritime disputes, according to Thayer.

In case other claimant countries in the dispute such as Việt Nam or Malaysia want to challenge China in court, “the 2016 award would serve as the basis for legal proceedings”.

According to Thayer’s observation, these two countries, besides the Philippines, were also the only two in the 10-country ASEAN bloc to issue statements welcoming the tribunal award. Since then, “no ASEAN country dares to mention the Arbitral Tribunal by name but opts instead to use the circumlocution ‘legal and diplomatic process’”.

Compliance with the tribunal ruling would likely not be included in the COC due to Chinese objections, Prof Thayer wrote, adding that complying with the ruling would require China to relinquish its hold on Mischief and Rubi reefs and permit fishermen from the Philippines, Việt Nam and other countries to fish in the waters around Scarborough Shoal, which is deemed “traditional fishing grounds” by the tribunal.

“It is difficult to see how a Code of Conduct can be effective if it ratifies the status quo,” he said.

Returning to the question of compliance with international law: A country that claims to be a responsible member of the international community cannot cherry pick the portions of international law that align with their interests, while disregarding anything that doesn’t.

Selective defiance of international law just adds chaos and disorder to an already unpredictable and fast-changing world. — VNS