No one expected the international arbitration court to be the last word that China had no legal basis to claim longstanding rights over most of the South China Sea, which is rich in resources and carries out $5 trillion in annual trade. The ruling also faulted China for its seemingly aggressive attempts to extend its domain by shipping in tons of dirt to transform small reefs and rocks into artificial islands with airstrips and military structures.
The waterway is too strategically important and the disputes too complex for the competing claim by China and five other countries in the region to be quickly resolved. Yet provocations continue raising questions about China’s commitment to the rule of law and heightening fears of a wider conflict. Xinhua the official Chinese news agency termed the ruling “naturally null and void.” China also issued its own 50-page white book on the South China Sea, reiterating that its claims are based on history and legitimate. It filed a protest with the Japanese Embassy in Beijing over the statement by Foreign Minister Fumio Kishida, who stressed the importance of settling the disputes in the South China Sea under the rule of law and through peaceful means.
While China has refused to accept the ruling, it has conducted air patrols over disputed areas, and said that it would hold war games with Russia. China is not alone in engaging in risky maneuvers since Vietnam had also stationed new mobile rocket launchers on five bases in the Spratly Islands. Fortunately, none of the claimants, which also include the Philippines, Indonesia, Brunei and Malaysia, have tried to take the sort of action that could cause a full-blown crisis, such as China’s threat to declare an air defense zone over the sea and to insist that all planes obtain permission before crossing through it.
US administration has responded in defending America’s commitment to freedom of navigation by sending warships into the South China Sea, close to some of the disputed lands. China has a compelling economic interest in a stable region and in 2012, President Xi Jinping called for a new relationship in which China and the United States would seek together to manage conflict. US administration has played an important restraining role in Sea arbitration but it lacks only one important point, while urging all Asian states to respect the United Nations Convention on the Law of the Sea dispute-resolution institutions, it has itself shamefully failed to ratify the United Nations Convention on the Law of the Sea (UNCLOS) treaty, something China did 20 years ago.
The Law of the Sea treaty sets rules for establishing zones of control over the oceans based on distances to coastlines. In addition to China and the Philippines, Malaysia, Vietnam, Brunei, Indonesia and Taiwan all claim parts of the South China Sea. The unanimous decision by a five-judge tribunal in The Hague was more favorable toward the Philippines and broader in scope than experts had predicted. The court’s judgment is legally binding yet unenforceable except through international pressure or private negotiations, because China has a power of veto over UN resolutions and the tribunal is limited to deal with maritime disputes, not the underlying land claims to the islands, reefs and rocks that are also contested. The Philippines filed the case in 2013 after China took control of a reef known as Scarborough Shoal. The case accused China of interfering with fishing, endangering ships and failing to protect marine life. Philippines also asked the tribunal to reject China’s claims to sovereignty within a so-called nine-dash line that encompasses much of the South China Sea.
What this means in diplomatic practice is causing confusion. Given China’s stake in peaceful trade with the rest of the world, it would be foolhardy for President Xi Jinping to take strong deliberate actions that could precipitate regional tensions and not improbably lead to a military confrontation with its neighbours or the United States. In fact, the ruling offers a fresh opportunity to address maritime disputes in a peaceful manner and China’s ambassador to the United States, Cui Tiankai, remarked that China remains open to negotiations. Despite competing interests of their own, China need to join the Philippines in endorsing the tribunal decision and then proceed, if necessary, with their own arbitration cases. This combination of diplomacy and pressure is sound, but the hard part is getting the balance right.
Given the situation in the South China Sea and China’s response to the ruling, the friction may intensify between China, on the one hand, and the US Japan, which has its own dispute with China over the Senkaku Islands in the East China Sea, and Southeast Asian countries, on the other. All countries need to solve the problems through diplomatic talks. The Association of Southeast Asian Nations and China should use the PCA ruling as an opportunity to accelerate negotiations to adopt a code of conduct by upgrading the voluntary Declaration on the Conduct of Parties in the South China Sea, signed by ASEAN and China in 2002. However, China is opposed to this, while ASEAN is also divided over how to resolve the dispute.
Defence budgets in south-east Asia have increased by about a third in the past decade; most of the spending is on naval and air platforms. Just as German soil was the military frontline of the Cold War, the waters of the South China Sea may be the military front line of the coming decades, as analyst Robert D. Kaplan suggested in a 2011.
The writer is a professor of psychiatry and consultant forensic psychiatrist in the UK. He can be contacted at firstname.lastname@example.org