The case of the century, a turning point in the East Sea
The arbitration case brought by the Philippines against China’s nine-dash line claims in the East Sea (internationally known as the South China Sea) ended with the ruling of the Permanent Court of Arbitration (PCA) constituted under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS) on July 12. We can call it a case of history for many reasons. For the first time in its history, China - "the world’s center"– was unilaterally sued by a small country in a marine dispute.
The reaction of the parties
China's artificial island in the East Sea. Photo: EPA
The ruling has been well received and widely acclaimed worldwide. The ruling promotes the spirit of respect of international law, gives important guidance on the interpretation and application of the UNCLOS 1982, and at the same time it asked the countries concerned to clarify the content and scope of disputes in accordance with the law.
The UN Secretary General, the United States, the European Union, Japan, Australia, India, South Korea, many ASEAN member states ... quickly issued a statement confirming the support to the ruling, considering it as the final verdict, which is legally binding and the parties concerned have to comply with it. They also called all parties for restraint, and to comply with international law.
The ruling returned the freedom of navigation, aviation for the international community in most of the East Sea. For the territorial waters of 12 nautical miles of the features, boats have the right to pass through without making any harm. Vessels of the US or other countries can come close to the Mischief Reef, within 12 nautical miles from where China builds its runways and large base on the artificial island. The ruling indirectly rejected any attempt to set up an air defense identification zone of any country in the East Sea.
The ruling provides the basis for ASEAN countries to reach a common view at the upcoming Summit on July 21. Singapore, the coordinator of the ASEAN – China relations, the country most concerned about freedom of navigation in the East Sea and Indonesia, the country was liberated from the recent upset when Natuna is within the nine-dotted line, will play a proactive role. Malaysia, assured of the James Shoal, will continue its policy of economic cooperation with China, while supporting the ruling.
Malaysia’s ministry of foreign affairs issued a statement calling for the implementation of the Declaration of the Conduct of Parties in the East Sea, a 2002 agreement signed by China and ASEAN to refrain from occupying uninhabited reefs and shoals. This country called for all sides to exercise restraint and avoid the use of force, saying it believed a peaceful resolution was possible with respect for international law.
The Philippines actively initiated the proposal to resume negotiations with China, including for the issues of "setting aside dispute and pursuing joint development".
In this regard, the Philippines has gone through a detour for 13 years, since the tripartite agreement among the Philippines - China - Vietnam on cooperation for joint development in 2003.
However, this proposal is based on a clear legal basis that the features in the Spratly Islands do not have exclusive economic zone or continental shelf individually. A statement calling on the concerned parties to respect the Tribunal’s ruling, supporting the maintenance of order in the East Sea based on international law would improve the image of a divided ASEAN in recent years.
China can save its face when joining the ASEAN to continue the negotiations on a Code of Conduct in the East Sea (COC). But a bad scenario, ASEAN cannot make a joint statement, can still occur. ASEAN solidarity can also be affected by the stance of the Philippines, the ASEAN President next year. If the Philippines revives the dispute with Malaysia over Sabah, Erica Reef which is managed by Malaysia may be located on the continental shelf of Philippines’ claims?
The court ruling also makes strong impact on future negotiations aimed at finding a lasting solution to the fundamental issue of sovereignty in the East Sea.
Taiwan, the author of the nine-dash line, thought it could not keep 200 nautical claims for Aba, may be pleased that the ruling does not touch sovereignty. Based on the position and strength in the region, Taiwan may declare to abandon the nine-dotted line claims in exchange for the status quo. If this happens, the situation of the East Sea will also change.
The biggest question now is how China will react to the PCA’s ruling. The ruling has stopped the momentum of China as a new superpower challenging the US as well as its ambition “one corridor one road" and the "core interests". It put Beijing ahead of two options: continue to reject, which will hurt its position and the trust of others or adjust its policy.
Only four hours after the PCA announced the ruling, the PCA website was knocked out by Chinese hackers. On the day the Tribunal released the ruling, Chinese President Xi Jinping claimed that China’s territorial sovereignty and maritime interests in the East Sea will not be affected by the PCA’s ruling in all situations. China's Foreign Ministry also said that the judgment is null and not binding.
There is no doubt that in the near future China will launch a huge propaganda campaign to reject the ruling and to maintain its claims in the East Sea. In the history of international proceedings, there were 5 cases in which countries did not appear at the hearings and did not accept the jurisdiction of the international court.
But along with time and pressure from the international community, these countries had to cooperate to settle the disputes under the ruling of the Tribunal. The international community hopes that China, which participated actively in the 3rd Conference on the Law of the Sea of the United Nations, a global power that has always declared its peaceful rise, will also not be an exception.
The statement of the spokesperson of the Chinese Foreign Ministry included the ability to open negotiations with the Philippines after the ruling. The international community should also help China quietly adjust policies and practical actions in line with international law.
The Tribunal rejected the nine-dash line in terms of claims of waters, not commenting on claims of sovereignty. China will continue to assert sovereignty in accordance with the line, even maintaining the claim of 200 nautical miles of the exclusive economic zone from these features. It will continue to strengthen military presence on artificial islands. Beijing can also consider occupying some uninhabited rocks. A scenario that many experts predicted that China will build artificial islands in Scarborough.
The US has warned China to not exceed the red line. But Scarborough is not located in the territory under the protection of the US- Philippines Defense Treaty. The possibility is not high, but can still occur when Beijing uses force to occupy some positions under control of other parties.
Beijing can argue that the Tribunal had no right to consider the legal status of each feature without considering the Spratly Islands as a feature. Instead of setting up an inefficient and difficult-to control regional air defense identification zone, Beijing could declare a baseline for Spratly Islands as it did with the Paracel Islands in 1996.
From this baseline China will continue to expand the disputed waters, instead of the U-shaped line. China cannot easily give up its attempt to control the East Sea, as a counterbalance to US in strategic competition.
Struggling to defend sovereignty will be fierce. Clashes are possible, but the parties are of sound mind to refrain war.
Immediately after the ruling was announced, an arms race to strengthen power has been quietly launched. Indonesia has stepped up security around the Natuna Islands. The reaction of China and the lack of enforcement mechanisms of the Tribunal shows that the ruling is important, but a legal solution is not a comprehensive solution of the conflict in the East Sea. The situation will be tense in the near future.
The ruling’s effects on Vietnam
As a coastal state with sovereignty over the East Sea, Vietnam has pursued a consistent policy of refuting the absurd nine-dotted line and supporting the Tribunal.
On December 7th 2014, the Vietnam’s Foreign Affairs sent its declaration to the Tribunal noting Vietnam’s stance 'to protect its legal rights and interests in the East Sea ... which may be affected during the trial process".
Vietnam also expressed its strong support to "member states of CULB seeking resolution for their disputes concerning interpretation and application of the UNCLOS... through the procedures specified in Part XV of the UNCLOS".
Vietnam’s statement clearly indicated that "Vietnam does not doubt the jurisdiction of the Tribunal in the process of litigation" and wished that the Tribunal’s ruling could "clarify the legal position of the parties in this case and that of third parties who are interested in".
When making the profile on the Limits of the Continental Shelf with Malaysia in 2009, Vietnam based it on the grounds that all the features in the Spratly Islands have waters of no more than 12 nautical miles. Vietnam's view is fully consistent with the content of the ruling announced on July 12th 2016.
On July 12th 2016, Vietnam quickly declared its support for the ruling. The spokesman of the Vietnam’s Foreign Affairs declared: “Vietnam once again reiterates its consistent stance on this lawsuit as it was fully shown in the Vietnamese Foreign Ministry’s Declaration on December 5, 2014, sent to the arbitration tribunal.”
“In that spirit, Vietnam strongly supports settling disputes in the East Sea through peaceful measures, including diplomatic and legal processes without the use or threat to use force, as in line with regulations of international law, including the 1982 UNCLOS, maintaining peace and stability in the region, security, safety and freedom of navigation in and overflight over the East Sea, and respecting the law-abiding principle in seas and oceans”.
“On this occasion, Vietnam once again affirms its sovereignty over Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagoes, the sovereignty over internal waters and territorial waters, the sovereign right and jurisdiction over Vietnam’s exclusive economic zone and continental shelf as defined in line with the 1982 UNCLOS. Vietnam upholds all of its legitimate rights and interests regarding the geographical structures belonging to Hoang Sa and Truong Sa archipelagoes,” stated the spokesperson.
The Tribunal’s ruling creates legal conditions to protect Vietnam’s exclusive economic zone and continental shelf from the mainland separated from the disputed waters. The contract signed between Chinese company Hai Zi Yang and US firm Crestone on Tu Chinh (Vanguard Bank) in 1992, which belongs to Vietnam’s continental shelf will no longer be valid. Likewise is 9 petroleum blocks which the China National Offshore Oil Corporation (CNOOC) called for tenders in 2012 on the continental shelf of Vietnam. These are examples mentioned in the Tribunal’s ruling, page 89.
Vietnam and Malaysia can ask the UN’s Commission on the Limits of the Continental Shelf - CLCS to consider the joint submission on the Limits of the Continental Shelf of Vietnam-Malaysia submitted in 2009. The Philippines will withdraw the request to the Commission to not consider the records of Vietnam and Malaysia and this country can join the joint submission.
Cable cutting operations, and pursuing Vietnam fishermen perform legitimate right to fish in their waters must be terminated. The right of access to resources of Vietnam fishermen in the waters of the Paracel Islands and Spratly Islands must be ensured.
Vietnam and other countries have the ground to ask China to end the illegal ban of fishing in the East Sea issued in 1998.
Vietnam as well as the countries concerned have the ground to clarify the claims of Spratlys Islands waters on the basis of claims of features.
Vietnam can learn from experience from the Philippines to use legal measures to determine the legal status of the features in the Paracels Islands, rejecting the baselines around the Paracels in 1996, reducing disputes off the Gulf of Tonkin on the basis of maintenance claims of sovereignty. Vietnam also has the ground to struggle with violations of the marine environment.
The Tribunal’s ruling also creates favorable conditions for Vietnam to implement the Resolution of Vietnam’s IXth National Assembly, 5th session, dated June 23rd 1994 ratifying the 1982 UNCLOS. The resolution allows studies to have the amendments and supplements necessary for the relevant provisions of national law in line with the 1982 UNCLOS, to ensure the interests of Vietnam.
The solution for the East Sea concerns overall political, diplomatic, legal, economic, security and defense measures. Legal tools are important, narrowing the differences, helping parties adjust policy, make right decisions, and satisfactorily resolve the sovereignty dispute for peace, stability and prosperity of the region and the whole world.
Viet Long, VNN