Five years later, South China Sea decision continues to make waves

On July 12, 2016, the Permanent Court of Arbitration in The Hague, the Netherlands, rejected China’s nine-dash line claiming 90% of the South China Sea, known as the East Sea In Vietnam.

Assessing the impact of the tribunal’s decision, Cmdr. Jonathan Odom, a military professor of international law at the Marshall Center for Security Studies, a German-American partnership in Germany, said it gave the Philippines and other countries a powerful podium to stand on.

Although China does not recognize it, the ruling is still binding law, Odom said, adding that this was his personal opinion and that he did not represent the Marshall Center’s point of view.

Professor Jay Batongbacal, director of the Institute for Ocean Affairs and the Law of the Sea at the University of the Philippines, said the biggest impact of the decision was recognition by the international community of how the Convention of United Nations Law of the Sea (UNCLOS) must be applied and interpreted in relation to the South China Sea.

When it comes to disputes in the region, regional countries like the Philippines, Vietnam, Malaysia and Indonesia fundamentally accept that the correct way to allocate jurisdiction and resources in the South China Sea is in accordance with the award. . Large countries like the United States, Japan, Australia, Canada, Germany and France have also expressed positions consistent with the court ruling.

“There is clearly an alignment that has formed around the decision, invalidating China’s excessive claims and asserting the rights and obligations of the respective parties when operating in the South China Sea.”

Batongbacal said the international community is increasingly calling on China to comply with the ruling, and has spoken out more and more about it.

Hoang Viet, a lecturer at Ho Chi Minh City Law University, said that over the past five years, the ruling has prompted a number of countries to clarify their position on the South China Sea.

He said that in particular, after Malaysia sent its Notes Verbales to the United Nations citing the 2019 ruling, several countries have directly and indirectly expressed their position on the need to uphold international law.

In early 2021, Japan joined.

“The price created a great effect,” Viet said.

Regarding the impact of the ruling on China, James Kraska, President and Charles H. Stockton Professor of International Maritime Law, Stockton Center for International Law, Naval War College in the United States, noted that China is talking less about the line with nine or more dashes on the rights of rocks and islands. Beijing has realized that no one outside of China accepts the nine-dash line, Kraska said.

“The court imposed a very significant cost on China. He has put China on the defensive regarding its activities which do not comply with the ruling.

“Waste paper? “

Commenting on assessments that the ruling has little value in the South China Sea because China is still aggressive and intrusive, the Viet from Ho Chi Minh City Law University said it would be understandable if people s The ruling was expected to force Beijing to step up.

The key problem is that the decision does not have an enforcement mechanism as a domestic law. If countries force China to comply, it can lead to military conflict. Therefore, compliance depends on the good faith of countries, in accordance with the Vienna Convention on the Law of Treaties.

However, “the decision still has enormous legal value,” Viet said.

He said that although China said the decision was “a used piece of paper,” Beijing has gone to great lengths to overturn the decision by funding academics to publish research on different sites.

Recently, on July 12, Chinese expert Wu Shicun, president of the National Institute for South China Sea Studies, wrote an article titled “South China Sea Arbitration Award Should Be Buried in Trash Can of history ”in the Global Times.

“If China considers the decision to be invalid, why does it have to make so much effort (to discredit it)?

While agreeing with the Viet on the legal value of the award, Kraska said international law cannot solve all problems and the ruling will not magically transform relations between countries.

Therefore, what is needed is that like-minded Southeast Asian states such as the Philippines, Vietnam, Indonesia and more powerful states like the United States, Japan , Australia, India and some NATO countries add authority to the decision, continuing to talk about it and act on it.

“Judicial decisions have more effect over time,” he said

Odom said the notion of a low-value decision is “what China wants to see.”

He recalled that the Chinese Society of International Law had published a 400-page study written by more than 100 experts, claiming that the ruling violated international law. However, many of the experts were not lawyers and they were not neutral experts. Therefore, no matter how many Chinese experts announce their opinions, it does not make the decision less onerous on China.

Like Viet, Odom also suggested that the ideal action would be for related countries to continue to invoke the ruling. Every year, on the anniversary of the judgment, countries like Vietnam, the United States and Australia are expected to issue statements, stressing that this is not to be desired.

Odom noted that the statement made by the United States this year showed that while President Biden and his predecessor Trump disagree on many issues, they agree on the importance of the tribunal’s decision.

After that ?

Batongbacal said the decision could play a role in next year’s presidential elections in the Philippines. He expected the new government to systematically assert its rights in decision-based jurisdictions.

In addition, he said the countries concerned should focus on the fact that China has no valid historical claims as this is probably the most important aspect of the decision.

Viet agreed with Philippine lawyers’ recommendation that ASEAN territory applicants should increase cooperation to clearly establish areas of overlap and conduct joint patrols in the South China Sea to enforce the ruling. ASEAN can also quote the price when negotiating the Code of Conduct (COC) with China, he said.

Odom said he hoped the next administration in the Philippines would demonstrate a clear and consistent view of the decision. This could help create a common voice for some ASEAN members who have a vested interest in the region and lead to a possible joint note verbale, he added.

He also suggested that small countries in the region strengthen maritime law enforcement in their maritime areas. For example, in the South Pacific, some countries do not have sufficient resources to fully control their exclusive economic zone against illegal fishermen, so they invite other countries to participate in joint law enforcement under the authority. of the coastal state. Such activities are fully in line with international law, Odom confirmed.

Kraska said if the ASEAN claimants could agree on a set of rules regarding the decision, the international community would join and support them and China would be isolated.

In fact, China’s fear-creating actions make countries cooperate more closely, he said.

The ruling will have greater normative authority as countries continue to cite it, he added.

“I hope that one day, when China has a more reasonable government, it will be more accommodating to the interests of its neighbors.”