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UNCLOS Arbitration Award in the South China Sea Dispute

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By Ryan Poitras

Background:

In June 2016, the United Nations’ Permanent Court of Arbitration Tribunal handed out its final award in Philippines v. China. The dispute centers around various islands and maritime zones in the South China Sea, specifically in the Spratly archipelago [1]. China’s “nine-dash line” is based on a map of the South China Sea created in the late 1940s which was founded on the historical Chinese occupation of the area in past centuries [2]. In the 1950s, the Philippines sought to assert their claims in the area by establishing a new municipality on the Spratly archipelago [3]. Since 2014, China has turned various reefs and rocks in the archipelago into military outposts through the construction of airstrips and radar installations [4]. This dispute between China and the Philippines, along with others disputes involving Vietnam and Malaysia, have contributed to increasing international tensions in the South China Sea [5]. The disputes are centered around the issues of terra nullius, exclusive economic zones (EEZ), geo-proximity, and continental shelf continuity [6]. Under the United Nations Convention on Law of the Sea (UNCLOS), only natural islands which sustain human habitation qualify their owner to 12 nautical miles of territorial waters and 200 nautical miles of exclusive economic zone [7].

Holding:

The arbitral tribunal was faced with two key legal questions in Philippines v. China [8]. First, the arbitral tribunal sought to determine whether China’s historic claims in the South China Sea are consistent with UNCLOS which would allow China to exceed the limits of its current maritime entitlements [9]. Second, the arbitral tribunal sought to determine whether the geographic features in the Spratly archipelago can be classified as “fully entitled islands,” which grant an exclusive economic zone and continental shelf to their owner under UNCLOS [10]. The arbitral tribunal’s award unanimously rejected China’s claim to historic rights with respect to the maritime areas of the South China Sea, which are encompassed within China’s “nine-dash line,” as being contrary to the Convention and thus without lawful effect [11]. The arbitral tribunal also backed the Philippines’ claim that none of the features in the Spratly archipelago are considered islands as defined by UNCLOS [12]. The award has been hailed as a substantial legal victory for the Philippines, but there remain doubts as to whether China will abide by the ruling [13]. China has declared that “the award is null and void and has no binding force” because China does not believe that the arbitral tribunal had the proper jurisdiction to rule on the issue [14]. The ruling has no enforcement mechanism which makes the actual impact of the ruling dependent upon the behavior of the parties [15].

Significance:

China’s future actions in the South China Sea will continue to be an issue of regional and international importance in the light of the arbitral tribunal’s ruling. Regionally, China’s adherence to the ruling would signal its willingness to negotiate with its less economically and militarily powerful neighbors to resolve their disputes [16]. As China rises to hegemony in the region, China must show its willingness to cooperate with its neighbors to maintain regional stability. In the international context, China’s adherence to the ruling will serve as a test of China’s willingness to submit itself to international law and will give China the chance to show what type of world power it seeks to become [17]. Now is the time for China to show that it will be a responsible stakeholder in the international order.

Update:

As of November 2016, there have been some significant changes amongst the parties involved in the South China Sea disputes. In June 2016, Rodrigo Duterte was elected as the president of the Philippines [18]. Duterte’s election and anti-American rhetoric set the stage for negotiations with China over the dispute, with Duterte meeting with Xi Jinping for discussions in October 2016 [19]. Since the discussions, Beijing has eased off in the Scarborough Shoal and has begun allowing Filipino fishermen to return to the area [20]. After the improvement in bilateral relations with China, Duterte ordered the end of U.S.-Philippines joint patrols of the South China Sea, actions which China viewed as provocative [21]. China appears to be attempting to improve ties with Malaysia as well, offering to sell Malaysia four Chinese naval vessels as well as signing a memorandum on defense cooperation with the country [22]. These moves signal attempts by China to incentivize its neighbors to cooperate with China on the issue.

With the victory of Donald Trump in the race for the U.S. presidency in November 2016, it is no longer clear what the U.S. policy towards the South China Sea disputes will be. Some experts are predicting that Trump will make a show of force by sailing U.S. naval ships through the area to show that the disputed waters are open to all countries. [23]. Analysts think that Trump will likely stop military actions in favor of economic engagement with China [24]. With U.S. exports to China totaling $114 billion in 2015, making the country the third largest destination for U.S. products, it is possible that Trump will support economic engagement as being in the interests of U.S. businesses [25].

Despite the importance of protecting U.S. business interests, the incoming Trump administration should continue to support the Obama’s administration’s “pivot” to Asia by supplementing economic engagement with China with diplomacy with China’s neighbors and by conducting freedom of navigation operations with the U.S. Navy. As the holder of the balance of power in the Asia Pacific region, it is in the interest of the U.S. to ensure the protection of U.S. partners against Chinese overreach [26]. Further diplomatic engagements with China’s neighbors will help to ensure that they have the support they need to stand up for their countries’ interests in the face of Chinese aggressiveness. Freedom of navigation operations show the U.S. commitment towards displaying the illegitimacy of China’s actions and U.S. support of international law.


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