5 years after SCS ruling: Growing global pressure on China to respect UNCLOS

Five years after a landmark international arbitration court ruling, rejecting China’s arbitrary claims on South China Sea, the strategically located maritime region remains mired in tensions, with a defiant Beijing strengthening its stranglehold over portions of the disputed territory.

On July 12, 2016, the Hague-based Permanent Court of Arbitration (PCA) decided the South China Sea Arbitration case in favour of the plaintiff, the Philippines. The arbitral tribunal rejected China’s claim of the “Nine-Dash Line,” in which China claimed historical rights over most of the South China Sea. On the day the ruling was made public, China’s Ministry of Foreign Affairs dismissed the arbitration’s existence as “illegal,” and said that “whatever ruling it makes is null and void, with no binding force.”

Over the years, China has repeatedly reasserted its claims to most of the waters within a so-called Nine Dash Line. Brunei, Malaysia, the Philippines, Taiwan and Vietnam have claimed parts or the whole of South China Sea.

The rejection of the Hague court ruling by China, which ruled in favour of the Philippines, has goaded the international community to push for a rules-based maritime order and to pressure China to abide by the UNCLOS.

Recent developments in the South China Sea have strengthened the perception that China will continue to script its own rules and narrative around the South China Sea, in defiance of the established international consensus. In March, according to various media reports, the Philippines complained of incursions by more than 200 Chinese militia vessels into the exclusive economic zone (EEZ), which extends 200 nautical miles from its coast. China rejected the charge, saying that the boats were sheltering from rough seas and no militia were aboard. According to a July 2020 opinion poll, 70% of Filipinos want the government to assert its claim in the South China Sea. Philippines, according to a Reuters report, has made 128 diplomatic protests over China’s activities in contested waters since 2016, and coast guard and bureau of fisheries vessels have conducted “sovereign” patrols in the Philippines’ EEZ.

Malaysia and Indonesia have from time to time complained about the actions of Chinese vessels in the South China Sea. China’s presence has steadily grown in the South China Sea, with various countries and international observers asserting that despite the Hague court ruling, China has continued with militarisation of artificial islands. China has, however, rejected this interpretation saying that these are defensive measures taken in its own territory, and hence other countries have no locus standi to meddle in its internal affairs. In February 2016, the Chinese Foreign Ministry had asserted that “China’s deployment of limited defense facilities on its own territory (the Spratly Islands) is its exercise of self-defense right to which a sovereign state is entitled under international law. It has nothing to do with militarization.” In September 2015, Chinese President Xi Jinping assured the world that “China does not intend to pursue militarization in the South China Sea,” but analysts say that Beijing’s actions on the ground prove otherwise and shows that it has no intention of respecting the binding arbitration award.

Vietnam, which claim part or all of the potentially resource-rich Spratly and Paracel islands in the South China Sea, has been very vocal in asserting its claims over the disputed maritime area. Vietnam has been mobilising the international community to pressure China to stop unilateral activities in South China Sea and abide by the PCA ruling.

India’s role

India, the world’s fifth largest economy and an emerging global player, has consistently supported freedom of navigation, over-flight, and unimpeded commerce in international waterways. At the time of the Hague ruling, India had urged “all parties to show utmost respect for the UNCLOS”.

Over the last couple of years, India has become more vocal about South China Sea and has been leveraging every international forum to oppose attempt at disrupting freedom of navigation and altering territorial status quo.

Recently, India’s Defence Minister Rajnath Singh, while speaking at a meeting of defence ministers from the ASEAN, struck a note of caution on developments in the South China Sea. “The sea lanes of communication are critical for peace, stability, prosperity and development of the Indo-Pacific region. In this regard, developments in the South China Sea have attracted attention in the region and beyond,” said Mr Singh.

“India hopes that the Code of Conduct negotiations will lead to outcomes that are in keeping with international law, including the United Nations Convention on the Law of the Sea (UNCLOS) and do not prejudice the legitimate rights and interests of nations that are not a party to these discussions,” he said. Last year, External Affairs Minister S. Jaishankar outlined India’s position on the South China Sea at the East Asia Summit. Without naming China, Dr Jaishankar expressed concern about actions and incidents in the South China Sea that “erode trust” and underlined the importance of adhering to international law, respecting territorial integrity and sovereignty, and promoting a rules-based global order. He stressed that the proposed code of conduct “should not be prejudicial to legitimate interests of third parties and should be fully consistent” with the UN Convention on the Law of the Sea (UNCLOS). There are some international observers who argue that as a responsible member of the international community, China must comply with the PCA award and follow the example of India. In 2018, India lost a similar arbitration to Bangladesh, in The Hague. India accepted to implement the award. Many countries, including the US and Japan, have been asking China to follow the example of India and accept PCI ruling.

Growing Global Pressure

The defiance of the PCA ruling and global public opinion by Beijing has goaded the world’s major powers to intensify pressure on China to respect the ruling. In a note verbale to the United Nations, France, Germany, and the United Kingdom said that the “claims with regard to the exercise of historic rights over the South China Sea waters do not comply with international law and the United Nations Convention on the Law of the Sea (UNCLOS) provisions”. In 2020, Vietnam, the second biggest claimant and a non-permanent member of the UNSC, brought the issue of the PCA award implementation to the UNSC. The Philippines, too, have been very vocal about its insistence that China must respect international laws.

Looking ahead, the international community is set to intensify pressure on China to heed the call to follow international law and honour existing international agreements on the South China Sea. It’s time for ASEAN member states to become more proactive and vocal in pressuring China to comply with the PCA award as well UNCLOS. It’s also time to speed up negotiations with China for a legally binding Code of Conduct (CoC) in accordance with UNCLOS. Increasingly, the South China Sea is becoming a global issue, with a new international consensus crystallized around adherence to the rule of law and to maintain universal values, including the freedom of navigation and peaceful resolutions of disputes.

Vietnam-India Connect

Vietnam has been urging India to play a bigger role to protect the SCS from unilateral encroachment. On July 10, in a telephonic conversation, India’s Prime Minister Narendra Modi and his Vietnamese counterpart Pham Minh Chinh discussed their shared vision of “an open, inclusive, peaceful and rules-based Indian Ocean Region,” an oblique reference to their joint commitment to promoting and preserving freedom of navigation in the South China Sea.

Looking ahead, till China comply with PCA ruling, countries like Vietnam with long-standing claims to Spratly and Paracel islands in the South China Sea, will take self-defence measures to protect their territory. Vietnam has deployed a maritime militia unit off the country’s southern coast to buttress its naval presence to protect its claimed territory in the South China Sea. The new maritime force, according to the Vietnam Defense Ministry, has been established to “jointly protect the sovereignty of the sea and the islands” by safeguarding fishing activities and conducting routine patrols within the country’s maritime territories.

Author Profile

Manish Chand

Manish Chand is Founder-CEO and Editor-in-Chief of India Writes Network (www.indiawrites.org) and India and World, a pioneering magazine focused on international affairs. He is CEO/Director of TGII Media Private Limited, an India-based media, publishing, research and consultancy company.