It has been two years now since an arbitral tribunal ruled that the Nine-Dash Line asserted by China in the South China Sea is in violation of United Nations Convention on Law of the Sea (UNCLOS) on July 12, 2016. During this time, China has made numerous attempts – military, political and legal – to negate the effects of the arbitral award.
Immediately after the ruling, on September 12, 2016, China and Russia held “Joint Sea 2016,” a joint military exercise, off the coast of Guangdong Province in the South China Sea. Then, in May 2018, China held its biggest ever military exercise, involving a naval carrier, off the coast of Hainan Island. Rejecting the arbitral award, China is bolstering its military presence in the South China Sea. Despite Beijing’s claim that the construction of artificial islands is for peaceful purposes, Mischief Reef and Fiery Cross were equipped with jammer systems, with exclusively military application, in April 2018.
China moved quickly to repudiate the tribunal’s ruling. Ahead of the ASEAN Foreign Ministers’ Meeting, the Chinese foreign minister traveled to Laos on July 24, 2016 to meet with the foreign ministers of Singapore, Brunei, Myanmar, Thailand, and Cambodia individually in an effort to divide ASEAN. Cambodia was promised more than $500 million in grant aid over the next three years, which was enough to convince Prime Minister Hun Sen to assert that Cambodia “does not support the arbitral award.”
At the ASEAN–China summit in Vientiane, Laos on September 7, 2016, a Chairman’s Statement was presented that specified a target deadline in the first half of 2017 for concluding consultations on a Code of Conduct outline that would be legally binding on South China Sea disputes. Yet, this target is conditional upon “circumstances without disturbances” for China, and so it has yet to be reached. The Hangzhou Summit Communiqué from the G20 held in Hangzhou on September 4 and 5, 2016 made no reference to the South China Sea arbitration award in any of its 48 paragraphs. At the same summit, only the United States and Japan mentioned the South China Sea ruling. Even the Philippines made no reference. On the other hand, Russia stated that it supported China in rebuffing the ruling.
Shortly afterwards, during a October 2016 visit, the Philippine president, Rodrigo Duterte concluded an agreement with China on 13 points covering everything from tourism to agriculture. This was accompanied by a total of $24 billion in economic cooperation, with a promise of $9 billion in loans, including $3 billion from private financial institutions. On March 17 the next year, China and the Philippines finalized a six-year plan for trade and economic cooperation. Duterte did say in a policy speech on July 25, 2016 that the Philippines “strongly affirm and respect the arbitrational tribunal’s ruling,” yet it is hard to escape the conclusion that the situation is moving in the opposite direction. After all, the Philippines was plaintiff in the case and, together with the defendant China, is obligated to implement the decision in its capacity as litigant.
The China–Russia Declaration
On June 25, 2016, immediately before the South China Sea arbitral award, China and Russia issued “The Declaration of the Russian Federation and the People’s Republic of China on the Promotion of International Law.” The declaration contains the passage “The Russian Federation and the People’s Republic of China reaffirm the principle of peaceful settlement of disputes.” Despite this, China continues to disregard the arbitral award. The reason can be found in that they “express their firm conviction that States shall resolve their disputes through dispute settlement means and mechanisms that they have agreed upon.” The Philippines’s unilateral application, independent of any agreement between those involved in the dispute, falls outside this principle of peaceful settlement of disputes. Moreover, in 2018, an article of more than 540 pages titled “The South China Sea Arbitration Awards: A Critical Study” was published in the Chinese Journal of International Law. It offered extensive criticism of the award and called for it to be invalided.
Yet if China only acknowledges the peaceful settlement of disputes based on an agreement between the parties involved, then the compulsory procedures entailing binding decisions in Part XV of UNCLOS cannot apply. As a party to UNCLOS, China must acknowledge that the decision is binding in accordance with Article 296. The international community must not consent to China disregarding a binding decision, but should continue its efforts to turn the South China Sea into a peaceful sea where UNCLOS applies.
Shigeki Sakamoto is a professor at Doshisha University.