Two Years On, South China Sea Ruling Remains a Battleground for the Rules-Based Order

 A PLA Navy fleet takes part in a review in the South China Sea on 12 April. Photo: Getty Images.
A PLA Navy fleet takes part in a review in the South China Sea on 12 April. Photo: Getty Images.

On 12 July 2016, an independent arbitral tribunal established under the UN Convention on the Law of the Sea (UNCLOS) published a clear and binding ruling on China’s claims vis-à-vis the Philippines in the South China Sea. China’s response at the time was to dismiss the ruling as ‘nothing more than a piece of waste paper’.

Interestingly, in the two years since then it has, in some small ways, complied with it. However, it is also clear that China’s behaviour in the South China Sea has not fundamentally changed. It is, in effect, using military force to try to extort concessions from its neighbours. That poses a threat to international peace and security.

The arbitral tribunal was asked by the Philippines to rule on 15 points, of which two were particularly significant. The first was that China’s claims to ‘historic rights’ within the entirety of the U-shaped, ‘9-dash line’ that it draws on maps of the South China Sea are mostly incompatible with the internationally-agreed UN Convention on the Law of the Sea (UNCLOS). UNCLOS is clear: entitlements in the sea have to be within areas measured from land.

Secondly, the tribunal ruled that none of the Spratly Islands, nor an isolated reef known as Scarborough Shoal, are capable of supporting human habitation in their natural state. This means that none are entitled to an exclusive economic zone around them. The implication of these two rulings is that the vast majority of the resources in the southern part of the South China Sea belong to the coastal states: the Philippines, Malaysia, Brunei, Indonesia and Vietnam.

Nonetheless China is continuing to pressure those countries to give away their rights to the oil, gas and fish. Under the name of ‘joint development’ China is continuing to demand a share of those countries’ resources even though the tribunal clearly ruled those demands illegitimate. In May 2017, President Rodrigo Duterte of the Philippines said publicly that his Chinese counterpart, Xi Jinping, had personally threatened him with war if the Philippines attempted to tap the large gas reserves in an area of the sea known as the Reed Bank.

The Philippines’ existing gas fields are expected to begin running out within five years, whereupon the country will face an electricity shortage. China’s military threats will have major consequences for the government in Manila. The most likely result is that the Philippines will have to build more coal-fired power stations to fill the gap.

Vietnam is in a similar position. In June 2017 and in March this year it was forced to suspend offshore oil development because of threats of military force from China. Vietnam’s oil output fell by 12% between 2014 and 2017 because Beijing’s intimidation is preventing it from developing new fields to replace those that are being depleted. This has reduced the government’s income with knock-on impacts on social and development spending.

Despite all this pressure, it is significant that none of the southeast Asian claimants have succumbed to Chinese pressure for ‘joint development’. They are continuing to assert the rights accorded to them in UNCLOS.

UNCLOS is a cornerstone of international peace and security. It was negotiated over nine years and agreed, in 1982, by almost every country in the United Nations. (The United States government signed it but the US Senate has not yet ratified it.) UNCLOS provides a neutral mechanism to allocate the world’s maritime resources but what we are seeing in the South China Sea is an effort by China to overturn it. In effect, China is deploying military might to overturn the legal rights given to the other countries.

If this is allowed to succeed, UNCLOS will be weakened everywhere, not just in the South China Sea. If countries can treat international treaties as simply ‘pieces of waste paper’ then no agreement is safe: international order begins to break down.

It is imperative, therefore, that all the other signatories of UNCLOS defend it from predatory behaviour. This means speaking up for the rights and obligations contained within its text – defending legitimate claims from those have been clearly ruled incompatible with international law. Small states need to be protected from the predatory behaviour of large states. The alternative is the slow collapse of international peace and security.

Bill Hayton, Associate Fellow, Asia-Pacific Programme.

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