'Diplomacy' in Midst of Strife

^{CCG-5901 of the Chinese Coast Guard near Luzon, Philippines. Image by Philippine Coast Guard. Photo for illustrative purposes.}

As for China’s recent provocative actions in the South China Sea, an important question is to be pondered upon: does Beijing’s belligerence mask a hollow claim? Or can it truly stake a legal correspondence to this disputed territory? Nevertheless, hostility and brinkmanship would never be any justification for whatever they want to prove, despite their rather bothersome insistence towards such. For this very reason, China’s claim towards the features located within the region is a direct threat—not only to the peace and security of the region—but potentially, on a global perspective.

This threat began to arise back in 2011, when PRC increased their presence in the area, along with some actions that were deemed provocative by other nations who also traverse within the area. On 25th of February, the Type 503 Dongguan frigate fired three shots towards Filipino fishing vessels in the vicinity of Jackson atoll—just about 140 nautical miles west of Palawan.¹ On the other hand, a Norwegian-flagged ship hired by PetroVietnam got its exploration cables deliberately cut after clashing with Chinese patrol vessels within Vietnam’s exclusive economic zone.²³

Thankfully, China was quick to reconcile with Vietnam as they signed an agreement together on 10th of October, regarding the basic principles that would guide them towards the settlement of the issue.⁴ However, it was a different case for the Philippines, as they got tangled in a standoff involving the BRP Gregorio del Pilar, CMS Haijian 75, and CMS Haijian 84. The China Marine Surveillance ships blockaded the Gregorio del Pilar after its personnel attempted to arrest Chinese fishermen that were illegally collecting maritime resources in the Scarborough Shoal. ⁵ Their relations only continued to worsen afterwards as China imposed a fishing ban in the said area, and the Philippines accusing Beijing of failing to honor a 2012 agreement that was made between the two—alongside Washington—which supposedly stated a withdrawal of forces until a deal regarding its ownership would be reached.⁶⁷

Furthermore, the ‘mutual respect’ that was ingrained in Beijing and Hanoi’s aforementioned agreement became ignored on 2nd of May 2014, after a Chinese vessel rammed a Vietnamese boat in their contested areas, resulting in the sinking of the latter. As a result of the series of incidents that happened then on, Hanoi suffered 24 damaged vessels and 12 harmed fisheries officials.⁸ Similarly, Chinese vessels started using water cannons to repel Filipino fishing boats that navigate around Scarborough shoal and nearby features, to which they still do until this day.⁹

Malaysia—another country in the region which previously dismissed China’s actions ¹⁰¹¹¹² to protect its own economic interests—began displaying diplomatic concern after Chinese coast guard vessels anchored on Luconia shoals on 8th of June 2015. According to the Malaysian government, they had not received any official claims beforehand but the Chinese government declares that the shoals belong to them, despite Luconia being roughly 200,000 nautical miles away from the mainland.¹³

On 12th of July 2016, the Permanent Court of Arbitration ruled under United Nations Convention on the Law of the Sea (UNCLOS) that China had not historically exercised any exclusive control within the Nine-Dash Line, therefore they have not legal basis to claim their ‘historic rights’ over the resources within the area. Even if so, it would have no legal correspondence if they exceed the provisions stated under UNCLOS.¹⁴

Additionally, under the International Regulations for Preventing Collisions at Sea (COLREGs), China breached Rules 2, 6, 7, 8, 15, and 16—which focuses on establishing safe navigation practices such as maintaining safe speed, maneuvering to avoid collisions, and respecting the right-of-way of other vessels.¹⁴¹⁵

Consequently, Beijing also directly violated the provisions of UNCLOS Article 94, mandating that all countries should ensure the safety of navigation, as well as the protection of the surrounding marine environment.¹⁴¹⁵¹⁶

Unfortunately, China rejected the tribunal ruling and stood by its previous stance that PCA has no jurisdiction over the dispute.¹⁷ According to a white paper that Beijing released on 7th of December 2014, the dispute was exclusively about sovereignty and maritime delimitation which would put it outside the tribunal’s lawful authority which restricts it under UNCLOS.¹⁸ Additionally, they argued that it is a breach of international law by the Philippines and that the arbitration was unilateral, thus by nature, in contravention of the bilateral dispute resolution between Beijing and Manila.¹⁹²⁰

However, in October 2015, the tribunal ruled that it has jurisdiction to consider seven of Philippines’ submissions to the court that did not involve such matters that were outside the authority of UNCLOS provisions. This was specifically under Article 288 of the Convention which provides that the court shall decide for its own, in the case that its jurisdiction would be disputed. It clarified that even though it didn’t preside over questions of sovereignty nor did it delimit any maritime boundary, the tribunal insisted that China’s nine-dash line is not entitled to UNCLOS.²¹

While the 2016 PCA ruling delivered a clear legal rebuke to China’s expansive claims, the practical reality is that China’s presence and assertiveness in the region have only intensified, while there are no clear methods to uphold the arbitration ruling. This leaves us with a crucial question: how long can the international community maintain the pressure while China continues to defy the convention and alter the status quo?

References

1. What we know about Jackson Atoll in disputed sea ↩︎

2. Dangerous waters: Behind the islands dispute ↩︎

3. Chinese patrol boats confront Vienamese oil exploration ship in South China Sea ↩︎

4. VN-China basic principles on settlement of sea issues ↩︎

5. Philippines and China to impose fishing bans amid standoff ↩︎

6. PH, Chinese naval vessels in Scarborough Shoal standoff ↩︎

7. Philippine diplomat to China: Don’t turn shoal into island ↩︎

8. Vietnam Says China Still Ramming Boats, Airs Sinking Video ↩︎

9. Philippines says China ‘fired water cannon’ on Filipino fishermen ↩︎

10. Mahathir: China no threat to Malaysia ↩︎

11. Why Malaysia isn’t afraid of China (for now) ↩︎

12. Malaysia splits with Asean on China Sea threat ↩︎

13. Malaysia Toughens Stance with Beijing Over South China Sea ↩︎

14. The South China Sea Arbitration ↩︎ ↩︎² ↩︎³

15. Judgment Day: The South China Sea Tribunal Issues Its Ruling ↩︎ ↩︎²

16. OP-ED: UNCLOS, Flag States, IMO and Accountability ↩︎

17. South China Sea: Tribunal backs case against China brought by Philippines ↩︎

18. The Tribunal’s Award in the “South China Sea Arbitration” Initiated by the Philippines Is Null And Void ↩︎

19. The Hague Tribunal’s South China Sea Ruling: Empty Provocation or Slow-Burning Influence? ↩︎

20. Chapter 10: The South China Sea Tribunal ↩︎

21. Press Release: The South China Sea Arbitration ↩︎