The 2016 South China Sea arbitration award: Can the past and present foretell the future?
The 2016 South China Sea arbitration award: Can the past and present foretell the future?
WRITTEN BY JAMES BORTON AND LUCIO BLANCO PITLO III
10 June 2021
Nearly five years since a landmark arbitration award, the situation in the South China Sea remains tense, maritime incidents persist, and cause for concern grows. Pressure to forcefully assert the ruling continues with less than a year before Philippine President Rodrigo Duterte steps down to give way to new leadership. However, progress in enforcing the award against a powerful neighbour that refused to take part in the process remains elusive.
Win now, assert later
The 2016 award was a big win not only for the Philippines but also for international law. The decision rendered by a special tribunal convened under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) reinforced the basis for claiming maritime entitlements. It invalidated China’s egregious nine-dash line claim as contrary to well-founded maritime rules of the road. It argued that historic rights had been superseded by UNCLOS.
In the South China Sea, the award narrowed down areas under dispute by ruling that none of the features in the Spratlys could be considered true islands eligible to draw extended maritime zones. Maritime disputes then were limited to overlapping territorial seas — confined within a 12 nautical mile radius — of rocks or high tide elevations held by rival claimants but adjacent to one another. The ruling also affirmed the Philippines’ western exclusive economic zone (EEZ) and noted Chinese incursions and interference in fishing, and oil and gas activities in waters and the seabed over which the country enjoys sovereign rights.
Sustained domestic pressure, efforts by other littoral states to align their claims with UNCLOS, and a growing chorus of countries referencing the award in their note verbales strengthen the hands of leaders who may come out more assertively on the issue.
When the ruling came out, the then-new Philippine administration under President Duterte adopted a “soft landing”. It decided not to “taunt” or “flaunt” the ruling to allow legroom to reset ties with Beijing and avoid further economic retaliation. Meanwhile, many in the international community, including other South China Sea disputants, kept mum or offered only muted reactions. Duterte thought that then was not the time for a reckoning. Vietnam called on both parties, the Philippines and China, to abide by the ruling. However, as time passed, Vietnamese authorities have strongly supported the adoption of a Code of Conduct (COC) and showed strong support for raising international awareness of the South China Sea disputes. “ASEAN has little or nothing it can do to force China to agree on an effective and substantial COC, so the negotiations have continued to deadlock on key issues”, writes Viet Hoang, a lecturer at the Ho Chi Minh City University of Law in The Diplomat.
Manila shelved the award to corner economic largesse from the world’s second-largest economy. China became the country’s largest trade partner in 2016, the second-largest investor in 2019 and a major infrastructure builder. China also played a critical role in the Philippine pandemic response donating millions of masks and personal protective equipment, cash, and dispatching medical experts to share best practices with their Filipino peers. China was also the first to donate and ship commercially procured Covid-19 vaccines to the country. One million CoronaVac doses by Sinovac were donated back in March and 4.5 million government-bought doses have been delivered as of May with another 4.5 million due to come by June. The arrival of Sinovac doses began the Philippines’ vaccine roll-out and Duterte himself was inoculated by a Sinopharm jab.
Do more, talk less
Notwithstanding the gains from improved ties with China, critics assail Manila for the apparent acquiescence to Chinese presence in the West Philippine Sea and official rhetoric that undermines the value of the award. Also, the recent massing of Chinese vessels, notably in Julian Felipe (Whitsun) Reef, gave momentum for renewing a two-decade-old military pact with the United States, the Visiting Forces Agreement, the termination of which has twice been suspended. The swarm of Chinese fishing vessels in the country’s western EEZ raises worries of overfishing and marine environment destruction. That some of these vessels allegedly belong to state-backed maritime militias heighten security concerns. Incidents like the 2019 sinking of a Filipino fishing boat in Recto (Reed) Bank after getting hit and run by a Chinese vessel arouse public indignation. Unilateral summer fishing bans and the advent of a new Chinese coast guard law inject further anxieties.
Nonetheless, despite unwelcome remarks that devalue the award or acknowledge the Chinese position in the West Philippine Sea, Manila has taken calculated steps to bolster its posture in the flashpoint. While he has yet to keep his promise to personally go to the country’s features in the contested sea on a jet ski to plant the Philippine flag, Duterte sent his alter-ego, Defence Secretary Delfin Lorenzana, along with the country’s top military brass, to lead a high-profile symbolic flag-raising ceremony in Pag-Asa (Thitu) in 2017. The administration also invested heavily in naval and coast guard modernisation, stepped up patrols, and made unprecedented construction upgrades in Pag-Asa against China’s wishes. Turning the seat of the country’s smallest town — Kalayaan or Philippine-administered Spratlys — into a logistics hub will reduce turnaround time for replenishing stocks, conducting patrols, and responding to contingencies.
Likewise, the country’s foreign affairs department issued a torrent of diplomatic protests against the continuing presence of Chinese vessels within the western Philippine EEZ despite several high-level talks. Manila also raised the award in its dialogue with China, notably in the bilateral consultation mechanism established in 2016, the sixth iteration of which was hosted virtually by the country in May 2020. President Duterte also cited the award in a speech he gave before the 75th session of the UN General Assembly last year. But these earnest efforts cannot offset the damage that would accrue from demeaning the value of the hard-won award. For instance, Duterte’s remarks that the award is “just a piece of paper” and that China is “in possession” of the West Philippine Sea may inadvertently play into Beijing’s narrative. These concerns may have prompted the announcement of a gag order over the issue. The move may help arrest confusing signals to both the domestic audience and international partners and dial down heated passions.
The win is what you make of it
The dilemma in enforcing the award is real. The lack of a supranational enforcer and fear of Chinese economic statecraft stack up the risks and costs of implementing it. Concerns about getting caught in the middle of a great power tussle playing out in the South China Sea (as the United States backs the ruling) puts Manila in a bind. Whether the award can preclude the activities of third countries, such as seizing or controlling new features or militarising existing ones, also remains to be seen.
In sum, a year before elections, the future of Philippine policy towards the maritime row and attitudes towards the arbitration award remains unpredictable. Sustained domestic pressure, efforts by other littoral states to align their claims with UNCLOS, and a growing chorus of countries referencing the award in their note verbales strengthen the hands of leaders who may come out more assertively on the issue. This may also open spaces for the award or its spirit to be cited in the text of a hopefully effective and binding Code of Conduct that ASEAN and China are working out. Whether these variables can be marshalled and put to good use by the next Filipino administration only future events will tell.
DISCLAIMER: All views expressed are those of the writer and do not necessarily represent that of the 9DASHLINE.com platform.
Author biographies
James Borton is a writer who has been reporting on Southeast Asia for three decades and he has recently completed a new book, ‘Dispatches from the South China Sea: The Search for Common Ground’.
Lucio Blanco Pitlo III is a Research Fellow at the Asia-Pacific Pathways to Progress Foundation. Image credit: Wikimedia.