Clashes in the South China Sea, looking back at the PCA Ruling
Clashes in the South China Sea, looking back at the PCA Ruling
WRITTEN BY VARENYA SINGH AND CHETAN RANA
13 February 2024
In 2023, the world's attention was captivated by the resurgence of Cold War-era fault lines in Europe and West Asia — Ukraine and Gaza. However, a more subtle yet equally significant geopolitical dispute was rekindling in the background. The past year was marked by a notable escalation in the South China Sea (SCS), especially between China and the Philippines.
The tensions were triggered when China’s Ministry of Natural Resources released a new ‘standard map’ in August that claimed nearly all of the South China Sea, including the Exclusive Economic Zones (EEZ) of other littoral states. Malaysia, Vietnam, and the Philippines rejected the map. In October, the Philippines and China clashed as the latter blockaded the attempts of the Philippines Coast Guard to replenish the Sierra Madre, a World War Two era warship marooned at the Second Thomas Shoal in the Spratly Islands. Filipino policies can be seen as a direct response to China's "grey-zone activities", which involve using non-military vessels to assert territorial claims. Chinese ‘maritime militia’ has been at the forefront of these activities in the SCS, allowing Beijing deniability. The conflict has since further escalated, with vessels of the two countries colliding in December 2023. This escalation of hostilities not only threatens the stability of the region but also underscores the complex nature of maritime territorial disputes.
Coincidentally, 2023 marked a decade since the Philippines registered arbitral proceedings against China at the Permanent Court of Arbitration (PCA). The 2016 award, which squashed China’s nine-dash line, remains the only substantial milestone in the evolution of the South China Sea territorial disputes to date.
The legal questions and the award
The award, pronounced in 2016, was a unanimous decision by the Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). The court adjudicated on primarily four major issues — the jurisdictional challenge to the PCA on sovereignty and delimitation under the UNCLOS, claims of ‘historic rights’ within the nine-dash line by China, the status of artificially built islands in the SCS, and finally, Chinese incursions in the EEZs of the Philippines.
China's persistent rejection of the tribunal's jurisdiction and ruling, along with its continuous assertion of sovereignty, underscores the limitations of international legal mechanisms in addressing deep-rooted geopolitical disputes.
Under the UNCLOS, matters over the sovereignty of states and delimitation of state boundaries fall outside the tribunal's purview. The Chinese position opposed the ‘unilateral nature’ of the arbitration initiated by the Philippines in its 2014 position paper. The tribunal employed the text under Article 9 to establish its jurisdictions, therefore making the dispute admissible in court. On the second issue, the tribunal ruled out any historical rights of China over both resources and fishing rights in the sea areas of the nine-dash line. It restricted the validity of Chinese rights only to the state’s EEZ under the convention. Over fishermen’s rights, the tribunal ruled out ‘exclusive’ historic rights for fishing and access to marine resources on the islands in question, citing insufficient evidence.
The status of marine features was the most complex and elaborate inquiry of the court. The tribunal noted that the reefs claimed as ‘islands’ were heavily modified by construction and land reclamation by China. These modifications did not stand the test of ‘natural condition’ under the UNCLOS. Hence, the modified islands were judged ineligible for calculating the 12 nautical miles limit (for EEZs) of the territorial sea. Additionally, the tribunal negated the presence of official personnel on the islands as qualifiers of human habitation and economic life. The personnel presence was understood as dependent on external support and ‘purely extractive’ in nature.
The primary criterion for the tribunal to negate Chinese claims on the Spratly Islands was the nature of activities on the islands. Without historical backing, Chinese activities in the region were seen as ‘purely extractive activity’, devoid of any autonomous ‘self-dependent economic activity’ rules stipulated in the UNCLOS. None of the Spratly Islands fulfilled the criteria to be accounted for in the establishment of ‘maritime fishing zones’ of China.
In essence, the tribunal adjudicated in favour of the Philippines. It ruled against Chinese entitlements over the islands. Since the islands were posited under the EEZ of the Philippines, China’s actions were discerned as violating the sovereign rights of the Philippines, via infractions over their EEZ lines.
An additional issue overshadowed by these strong geopolitical claims was the irreparable damage caused to the coral reefs in the Spratly Islands. Chinese actions were definitively in violation of the ‘obligation to protect marine environments’ under the treaty. Since the dispute resolution process is heavily state-centred, the damage to global marine commons including evidence of turtle and clam harvesting by Chinese authorities fell in direct contravention of the UNCLOS.
China maintains its objections to the verdict. It asserts that the dispute is exclusively one over sovereign rights, thereby contesting the jurisdiction of the tribunal from the onset. Beijing further argues that the arbitration was unilateral and in contravention of the bilateral dispute redressal agreement between the parties. It claims this to be a breach of international law by the Philippines. China asserts that maritime delimitation is outside the purview of the compulsory dispute settlement procedures and, equally, outside the purview of the tribunal.
The aftermath and the continuing contestations
One of the primary issues in turning the award into reality has been the reluctant response from ASEAN. After the 2016 ruling, the regional body came out with a lukewarm response, largely because of the internal divergences and overlapping claims amongst ASEAN members. Furthermore, some ASEAN member states see the award as potentially detracting from the legitimacy of their own methods for establishing a Code of Conduct (CoC). In collaboration with China, ASEAN came up with the declaration on conduct in the South China Sea in 2002 and has since aimed to achieve a consensus on an enforceable CoC through negotiations. More than two decades later, the negotiations have failed to deliver any viable output. In 2023, under the Indonesian leadership of ASEAN, a set of guidelines was agreed upon to help arrive at the CoC in the next three years.
China has found it easier to drag its feet in negotiations with ASEAN due to the overlapping claims of the member states as well as its influence over Laos and Cambodia. However, regionally resolving the dispute will ensure ASEAN’s otherwise eroding centrality in the great power politics of the Indo-Pacific. The CoC becomes a question of ASEAN’s existential relevance.
After the latest clashes, Philippine President Ferdinand Marcos Jr. announced reaching out to Vietnam, Malaysia, and other claimants in the South China Sea dispute to come up with a separate code of conduct. There is little support for this initiative at this stage. However, if other claimants find themselves frustrated, the idea could gain momentum. While a separate CoC on the South China Sea without including China is unlikely to practically resolve issues and could potentially undermine ASEAN unity, it would help resolve the overlapping claims and enhance the bargaining power of the littoral states. At the same time, one of the most crucial developments has been the Philippines’ active courtship to attract littoral states and non-claimant states — like Australia, the US, and Japan — for joint operations and exercises in the South China Sea, raising stakes and risking further brinksmanship. The trend towards militarising the South China Sea will invariably shift the redlines, making crucial sea lanes even more dangerous to navigate.
Assessing the future: Environmental and legal challenges in disputed waters
One of the consequences of the excessive securitisation of the South China Sea has been neglect of its environmental crisis. Island construction in recent years has severely damaged several reefs hosting marine diversity. Furthermore, the continuing contestation over EEZs has led the littoral states to indiscriminately fish in the waters putting long-term sustainability in serious doubt. Despite the landmark ruling in 2016, the realpolitik of the region has remained largely unaltered. China's persistent rejection of the tribunal's jurisdiction and ruling, along with its continuous assertion of sovereignty, underscores the limitations of international legal mechanisms in addressing deep-rooted geopolitical disputes.
ASEAN and China’s inability to formulate a cohesive and effective CoC and the Philippine call for an alternative CoC further reveal the complexities of regional politics. The divergent interests and claims of member states, coupled with China's significant influence in the region, impede a united front. The great power asymmetry between China and other claimants means that China can act at will in the SCS. With the United States stretched and engaged in Ukraine and the Israel-Hamas conflict and a likely inward focus due to the upcoming elections, China could have free rein and solidify its regional hegemony. The coming months will be a test for ASEAN and its ability to stand with the Philippines and seek progress on the CoC will be key developments to watch.
DISCLAIMER: All views expressed are those of the writer and do not necessarily represent that of the 9DASHLINE.com platform.
Author biographies
Varenya Singh is currently pursuing an LLB at National Law School of India University, Bengaluru. She holds a Masters in Politics and International Relations from Jawaharlal Nehru University and a Bachelors in History from Lady Shri Ram College, University of Delhi.
Chetan Rana is a PhD candidate at the Centre for International Politics, Organisation, and Disarmament (CIPOD) at Jawaharlal Nehru University, New Delhi and Associate Editor at 9DASHLINE. He also holds a master's degree in Politics with specialisation in International Studies from the School of International Studies, Jawaharlal Nehru University. He writes on issues concerning the Indo-Pacific, populism, Indian foreign policy, and Myanmar. Image credit: Wikimedia Commons/Philippine Coast Guard.