China Reigns In The SCS Despite Landmark Ruling
China reigns in the South China Sea (SCS), almost unchallenged, five years after the landmark Arbitrary Court ruling against its illegal occupation of the international waterways.
Beijing has currently imposed its supreme rule in the seas, which it says is historically theirs. For China, other nations are encroaching in the area
The Chinese stance put at risk a major global trade route for goods, especially crude oil. Their brushing away international laws could spark an international conflict pitting global superpowers.
However, China is unfazed, thinking about the region as officially within its exclusive economic zone with rules written by Beijing.
July 12th marks five years of the ruling in the Philippines v. China (PCA case number 2013–19), also known as the South China Sea Arbitration.
The arbitration case was brought by the Republic of the Philippines against the People’s Republic of China under the United Nations Convention on the Law of the Sea 1982 (UNCLOS). Both the Philippines (1984) and China (1996) have ratified the UN convention.
The arbitration was about certain issues in the SCS, including the controversial nine-dash line.
In 2016, the special arbitral tribunal ruled in favour of the Philippines on most of its submissions. It was an international slap to Beijing’s claims to historic rights inside the nine-dash line.
RISING SUPERPOWER?
With its incursions and violations in the SCS, is China still a rising superpower? Or is it the Superpower of the entire South Asia region?
Supported by a massive army that was increasingly modernised and a stronger maritime fleet than it has ever seen in modern history, China is here to stay.
What does that mean for the countries in the Southeast Asia bloc, Asean? The stronger China is, the larger cracks appear within the Asean.
Since the 2016 ruling, China has grown into an almost untouchable behemoth, bullying the smaller nations in the SCS.
The countries showing its nose in the disputed seas mainly are the US with its navy and aviation interests in the region and partly are Japan and Australia, the key allies of the US in the region. They challenge China’s unilateral occupation of the sea. China responds with more incursions against Asean members states.
The recent incursion of Chinese fighter jets in Malaysia’s air space is an example of this fury. On June 1, Malaysia scrambled jets to intercept 16 Chinese military planes.
Coinciding with the incursion, data from Asia Maritime Transparency Initiative (AMTI) showed a Chinese coastguard vessel operating near the Kasawari gas field off the coast of Malaysia’s Sarawak state on June 4, soon after a pipe-laying vessel hired by Malaysia had arrived in the area. The US think-tank believes it may have been part of “parallel escalation” efforts aimed at challenging energy exploration activities in the SCS.
Foreign Minister Hishammuddin Hussein summoned China’s ambassador over a Chinese military aircraft manoeuvre in airspace near the East Malaysian state of Sarawak. He says that was tantamount to a “breach of Malaysian airspace and sovereignty”.
China’s response to Hishammuddin’s comments was immediate, saying the “reported activities” were part of routine flight training. The Chinese say that it does “not target any country” and that it abides by international law. The same international laws it rejects in the illegal occupation of the SCS.
TOUGHER MALAYSIA?
In 2019, Malaysia presented a submission to the United Nations Commission on the Limits of the Continental Shelf (CLCS). It claims that its continental shelf is extended beyond 200 nautical miles in the northern part of the SCS and reiterates the importance of UNCLOS.
The Permanent Mission of Malaysia to the United Nations in the Note Verbal HA 26/20 (July 2020) states the government of Malaysia rejects China’s claims to historic sovereign rights in the South China Sea and the ‘nine-dash line.
Malaysia says they are contrary to the Convention and without lawful effect. And the Government of Malaysia considers that the China’s claim to the maritime features in the SCS has no basis under international law.
Recently, in the 31st meeting of States Parties to UNCLOS, Ambassador and Permanent Representative of Malaysia to the United Nations in New York Syed Mohamad Hasrin Aidid has reaffirmed the importance of the convention.
He says Malaysia believes the Convention should be used as a basis for resolving disputes relating to maritime issues between parties in the SCS. UNCLOS has been contributing to the strengthening of peace, security, cooperation and friendly relations among all the countries in the world, says he.
Malaysia further recognises the contributions and roles of the three main organs under the Convention, namely the International Tribunal for the Law of the Sea (ITLOS), the International Seabed Authority (ISA) and the Commission on the Limits of the Continental Shelf (CLCS).
UNCLOS AND ASEAN ROLE
Security situation in the SCS is at risk despite the parties’ efforts to maintain stability through collective measures and activities.
Threats are from maritime terrorism, piracy, unlawful intrusions into territorial waters, illegal fishing. There is also trafficking of drugs, of weapons and human trafficking. Illegal, unreported, unregulated (IUU) fishing activities also threaten marine life as well as heighten tensions between states, becoming politicised, fractious and unpredictable.
These activities have significant economic costs in some countries and heighten tensions between states. Port infrastructure and commercial shipping are also increasingly vulnerable to regional piracy and maritime terrorism.
To tone down from the recent increase in military and occupation activities and to put less importance on the overlapping claims and tackle these problems, there is a need for collective actions from Asean, especially the Asean unity along with multilateral mechanism.
ASEAN has an obligation to play a central role in the settlement of the South China Sea disputes. It is also the shared responsibility of the member states to facilitate the process. And not only its members but also outsiders should respect ASEAN-led mechanisms.
All the countries involved in the crisis have to accept the international norms and laws, such as UNCLOS.
In the White Defense Paper 2021, for the first time, Brunei has mentioned the convention as an important tool to resolve the disputes in the SCS. The Asean Chair 2021 said efforts must be made to define accepted norms and behaviours under international law, namely UNCLOS.
The full and effective implementation of the 2002 Declaration on the Conduct of Parties in the SCS (DOC) in its entirety is necessary.
Finally, ensuring substantive progress is made in the negotiations towards an early conclusion of an effective and substantive Code of Conduct in the SCS (COC) is also important.
