On July 12, an arbitral tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS) issued its final award in the dispute between the Philippines and China over maritime claims in the South China Sea. It was the first significant international law decision on maritime disputes in the highly-contested waterway. Some commentators suggest that the tribunal’s ruling could be a game changer for managing or resolving maritime disputes in the South China Sea.
The conclusions in the award have been subject to extensive interest and analysis regarding the parties’ maritime entitlements in the South China Sea and their obligations under UNCLOS. Maritime claims made by other parties in the South China Sea disputes and by states in other regions could also be affected as a result of this ruling.
The award also has important implications for a host of activities in the South China Sea, including fishing, energy exploration and exploitation, navigation and overflight, construction and land reclamation, and law enforcement and patrols. The implications extend beyond the two parties in the arbitration case to other claimants in the South China Sea and to parties outside the region, such as the United States and Japan.
It is likely that the parties in the arbitration will make adjustments to their South China Sea claims and policy positions in accordance with the tribunal’s ruling. It is also likely that other claimant states will reference the award in determining the nature and scope of permissible activities in the South China Sea under the UNCLOS.
One of the biggest threats to managing peaceful diplomacy in the region could come from states testing Beijing’s refusal to comply with the arbitral ruling. If the claimant states attempt to carry out activities like energy exploration within areas of their exclusive economic zones that fall inside China’s “nine-dash line” or near its man-made islands, Beijing could read such actions as provocations.
It seems that the Philippines, at least, will not refute China’s position that the award is “a piece of trash paper.” The new administration in Manila under President Rodrigo Duterte has taken a cautious approach to the dispute with China since coming to power in late June. Duterte told China Central Television that the award is just “a piece of paper with four corners,” and that the arbitration case would “take a back seat” during his visit to Beijing in October. Duterte’s approach has opened the door for bilateral negotiations between Manila and Beijing. A joint statement at the conclusion of Duterte’s Beijing visit did not mention the South China Sea arbitration or the tribunal’s ruling. The only portion referencing the South China Sea promised cooperation between the two nations’ coast guards on maritime emergency incidents as well as humanitarian and environmental concerns.
In contrast to the Philippines, the United States and other external parties such as Japan are likely to pressure China to comply with the tribunal’s ruling. On October 21, a U.S. Navy destroyer was dispatched to the waters near the Paracel Islands to conduct a freedom of navigation operation (FONOP). Interestingly, the operation was conducted during President Duterte’s visit to China. Was this FONOP intended to pressure China into accepting the outcome of the arbitration? Or, as a U.S. Department of Defense spokesperson said, was it only a “routine” FONOP? Had Duterte not signaled a diplomatic pivot to China, might the United States instead have conducted FONOPs in the waters near features in the Spratlys that were declared by the tribunal to be low-tide elevations or rocks, such as Mischief Reef, Subi Reef, and Fiery Cross Reef?
Japan is also likely to take action to challenge China’s non-compliance. Japanese defense minister Tomomi Inada, speaking at the Center for Strategic and International Studies in September, said that Japan is seeking to involve itself more deeply in South China Sea affairs. That involvement could include joint patrols with the U.S. Navy as well as bilateral and multilateral naval exercises and capacity building with countries in the region. During the East Asia Summit in Vientiane in September, Prime Minister Shinzo Abe urged China to comply with the ruling, and the country is also reportedly keen for Indian support in the matter.
Given that the Philippines, the country that filed and won the arbitration in the first place, is unwilling to demand that China immediately comply with the award, how can states that were not party to the arbitration justify pressuring China to implement the outcomes of the arbitral proceedings?
China will certainly respond if external parties undertake provocative actions in the South China Sea to force it to accept the tribunal’s ruling. The FONOP conducted by the United States on October 21 was considered by the Chinese defense ministry to be “illegal” and “provocative.” In response, China sent two warships to warn the U.S. destroyer to leave the area, and held military drills near Hainan Island a few days later.
If the United States and its leading allies continue to take actions to challenge China’s maritime claims in the South China Sea, they are likely to see further countering actions from China, which might include renewed construction and land reclamation, straight baselines drawn around the Spratly, or maritime law enforcement and patrolling activities. The announcement if an air defense identification zone in the South China Sea would be likely.
The tribunal award does not resolve the dispute between the two parties. It opens the door for continuing dialogue between and among all parties involved in the South China Sea. External parties or user states of this important waterway need to assess wisely and correctly the possible impact of their activities on the regional efforts to promote peace and stability and transform the sea of confrontation into “a sea of peace, friendship, and cooperation.” They also need to reexamine their own maritime claims in light of the award and in accordance with the provisions of UNCLOS.