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Two Years After South China Sea Arbitral Award: Deceptive Serenity

Legal counsels and representatives from the Philippines argue on the tribunal’s jurisdiction over the case against China on the South China Sea dispute.

Legal counsels and representatives from the Philippines argue on the tribunal’s jurisdiction over the case against China on the South China Sea dispute.

After the ruling of the arbitral tribunal formed pursuant to the United Nations Convention on the Law of the Sea, the South China Sea has enjoyed a relatively peaceful time although disagreements remain dormant elsewhere. China has lessened the noise but strengthened the “charm” of economic interests to allure countries in the region. Yet analysts pointed out that Beijing's strategy will only lead to “non-accomplishment”.

Historic victory

July 12th, 2016 is a day in history with the victory of international law. Exactly 2 years ago, the Arbitral Tribunal, constituted under Article 287, Annex VII of the United Nations Convention of the Law of the Sea, was convened to reconcile the conflicts of interests in the South China Sea between the Philippines and China. Despite pressure from a powerful rising power, Manila won almost complete victory, gaining 14 of its 15 claims against Beijing.

According to international analysts, after the Tribunal's decision, the South China Sea has had a relatively nonviolent time. Many diplomats and legal experts said there was a period of temporary silence to reduce the heat of the ruling while China's ambition remain a major source of tension in the region for years to come.

The Arbitral Award on the South China Sea case

The Arbitral Award on the South China Sea case

The ruling rejected all of China's unreasonable “nine-dash line” claims. The ambition to encroach on the interests of other states in the South China Sea is one of China's biggest diplomatic failures for decades.

After the initial period of repeatedly making vague statements on the value of the ruling, Beijing's leaders began to choose how to silently consolidate and expand its presence in disputed waters, promote militarization on illegal occupation islands.

While the United States and the Philippines remain cautious in reacting to new moves from China, Professor Carlyle Thayer of the Australian Defense Institute expressed concerns that “as long as the parties do not take new action, Beijing will think that the international community has made concessions”.

But according to researcher Le Hong Hiep at the Institute of Southeast Asian Studies (ISEAS - Yusof Ishak Institute) in Singapore, the ruling set a precedent that will not be forgotten, “The ruling is like a stone carving, not easily eradicated, it will still have strategic implications for China's South China Sea policy for many years after”, he said.

China’s failure?

International analysts reckoned that the Philippines President Rodrigo Duterte is likely to be the biggest surprise in Washington's strategic shift to Asia - Pacific. Jay Batongbacal, a legal expert at the University of the Philippines, said that China and the Philippines are eager to reconcile their damaged relationship for many years, both choosing not to discuss the ruling in the meetings between leaders and officials of both sides.

Still, Zhang Mingliang, a Southeast Asian analyst at Jinan University said, "Beijing was not completely complacent about this, as all other disputed states, including both Malaysia and Brunei have indicated they have not waived the Tribunal's ruling, or made any compromise of territorial sovereignty".

Meanwhile, the United States has warned of potential dangers in the South China Sea that are “heating up the US-China competition”. China bluntly said that the ineffective coordination of disagreements and friction inherent between the world's two leading economies could lead to armed conflict. “This is the first time in the last 100 years that China and the United States are facing face-to-face conflicts of interest in the Asia-Pacific region”, the Chinese expert said.

Observers acknowledged that China is well aware of this and will step up efforts in the traditional “carrot and stick” approach in the region, by seducing its neighbors with economic interests. However, some people are still skeptical about the long-term effectiveness of this strategy.

“Key players in Southeast Asia will continue to modernize their military forces, guard against high-risk relations with Beijing, and encourage the United States to continue strengthening its economic and military cooperation”, commented Professor Carlyle Thayer.

Political power’s threats

Since the Arbitral Award between the Philippines and China that found consentaneously in favor of the Philippines, little appeared to change in the South China Sea. China has not withdrawn from the disputed islands and rocks and has persisted with its island-building activities, further boosting great concerns over its militarization strategies of the islands.

China's expanding the construction of its facilities on Fiery Cross Reef, provided by the Asia Maritime Transparency Initiative (AMTI).

China's expanding the construction of its facilities on Fiery Cross Reef, provided by the Asia Maritime Transparency Initiative (AMTI).

Beijing has deployed a range of military hardware including anti-ship missiles, surface-to-air missiles and electronic jammers across the South China Sea, where it has built islets and other maritime features into hardened military facilities. China has also landed heavy bombers on Woody island in the Paracels.

China’s deployment of weapons in the illegally built structures in the South China Sea and its large-scale military moves in the waters intelligibly run counter to commitments the country made. This is also contrary to the Declaration on the Conduct of Parties in the South China Sea (DOC), signed by China and the member states of the Association of Southeast Asian Nations (ASEAN) in 2002, which requires the countries to maintain the status quo and not complicate the South China Sea situation.

Strictly enforce the ruling

ASEAN still could not see any way out of the dilemma. It repeatedly holds aloft a rules-based regional order and international law, including UNCLOS. Yet ASEAN is reluctant to take any action that would incur China’s wrath.

China's refusal of mandatory dispute settlement mechanisms under UNCLOS undermines the role of international law in curbing the behavior of major powers. This may lead to the rise of pragmatic political views (protection of national interests and reliance on power) and the balance of power between China and the United States.

If the Arbitral Award is not protected and promoted, this means that international law - specifically UNCLOS - will be downgraded as just one of the means of maintaining the full order. Consequently, in Southeast Asia, pragmatic politics and the balance of power mechanisms will play a greater role in determining regional order. And in that case, the battle between China and the United States is rising and “strongly rebounding” which may negatively impact the aims of ASEAN to play a central role in regional security architecture and independence of Southeast Asia.

Political, diplomatic and military moves in the South China Sea indicate that China has not given up its ambition to occupy vast area of the South China Sea. However, the convergence of factors inside and outside China since mid-2016 has forced Beijing's leaders to adopt tactical adjustments to limit the impact of the ruling, avoiding the attention of international public opinion, and at the same time preventing the gathering of forces adversely affecting China. However, China continues to invest heavily in naval forces, implicitly upgrading infrastructure for its outposts in the Paracels and Spratlys. Although the ruling has the effect of reducing the disputed area, thereby narrowing the space for Chinese civil and legal activities, the ruling has no impact on military operations, expanding, strengthening China's military, security and strategic control in the South China Sea. More importantly, the lack of enforcement mechanism along with the policy change of the Philippines helped China took the lead on the diplomatic and strategic matters in the South China Sea. Accordingly, the situation of the South China Sea is calm on the face but extremely dangerous. The South China Sea can only be stabilized if the ruling and UNCLOS are respected and enforced by all parties.

The Award by the Arbitral Tribunal now constitutes a fundamental part of international case law. ASEAN has chosen to sit on the fence, thus fostering continued contention between maritime powers who accept the Award and China, which puts itself above international law. For the arbitration case to meaningfully partake in the perpetuation of a rule - based order and international law, it is compulsory that all stakeholders – big or small states, parties and non-parties to the case, including non-state actors – manifest their firm engagement and support to it.

They required the serious implementation of the Declaration on the Conduct of Parties in the South China Sea (DOC) and efforts to complete a Code of Conduct (COC), holding that an efficacious and binding COC will play an important part in securing a transparent and rule-based regional architecture and a peaceful and stable South China Sea.

This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.

© 2018 Justin Blake