Analysis: Waters rage in South China Sea (Part 1)
Asia Maritime Reviews
Maritime Security
Analysis: Waters rage in South China Sea (Part 1)
07th December 2016 – 10:08
by
in Hong Kong
On 12 July the Permanent Court of Arbitration (PCA), at The Hague, handed down a landmark decision in a case the Philippines had brought against China in 2013 regarding Beijing’s expansive maritime claims in the South China Sea.
Many were stunned by the comprehensive nature of the PCA’s verdict in Manila’s favour. Indeed, the decision was nothing less than a damning indictment of Chinese policy and behaviour. Andrew Erickson, professor of strategy at the US Naval War College, commented: ‘This is a remarkable victory for the Philippines. Many will be struck by the fact that the tribunal found Beijing to have violated no fewer than 14 UNCLOS provisions, six international regulations for preventing collisions at sea, and one general rule of international law.’
China all along stated it would not participate in PCA proceedings, nor abide by any decision. Instead, it launched an acerbic and pre-emptive worldwide publicity campaign attacking the legality and impartiality of the PCA. Although Beijing refused to attend hearings at The Hague, the 501-page final report revealed that China individually lobbied judges and that it used its ambassador to the Netherlands to make submissions to the PCA.
The tribunal’s findings
The Philippines raised 15 specific questions for the PCA to rule upon because the 1982 United Nations Convention on the Law of the Sea (UNCLOS) governs only maritime matters, it avoided sovereignty of features in the South China Sea.
There were a number of bombshell findings in the tribunal’s report, and five of the most important have previously been summarised by Shephard here.
Chinese rage
China’s reaction was predictably defiant. The Chinese government released a statement claiming ‘China has territorial sovereignty and maritime rights and interests in the South China Sea’ that are ‘consistent with relevant international law and practice’. It asserted, ‘China stands ready to continue to resolve the relevant disputes peacefully through negotiation and consultation with the states directly concerned on the basis of respecting historical facts and in accordance with international law.’
(Photo: author)
Given that the Philippines had already engaged in 17 fruitless years of bilateral negotiations with China, it is difficult to anticipate significant progress under such preconditions. China could have viewed this award as an opportunity to move forward, but instead it has painted itself into a corner that severely narrows the avenues open to it going forward.
The decision to boycott the process was Beijing’s alone. The award did not touch on sovereignty in the South China Sea, so Chinese accusations that the tribunal overstepped its bounds are false. Nor did it delimit overlapping maritime boundaries. The tribunal has not snatched occupied features from China’s hands, but it has clearly defined which rocks are entitled to a 12nm territorial sea.
Beijing’s and its proxies’ continuous besmirching of an international court reflects hurt national prestige rather than adherence to a rules-based order. Indeed, its orchestrated campaign to discredit the tribunal included allegations of backhanded bias. For example, China’s vice foreign minister Liu Zhenmin cast aspersions that the Philippines had bought off the judges. ‘These judges are paid, so who’s really behind this tribunal? Who was paying them? Was it the Philippines or some other country?’ he asked.
Liu threatened that China reserves the right to establish an air defence identification zone over the South China Sea, just as it controversially did over the East China Sea in 2013. If Beijing did so, this would be an extremely inflammatory escalation.
Donald Rothwell, a professor of international law at the Australian National University, spoke to Shephard on the sidelines of the Public International Law Colloquium on Maritime Disputes Settlement in Hong Kong in mid-July. He said China has ‘some strong arguments on jurisdiction’. Yes, ‘The tribunal was hamstrung because one side only appeared,’ he admitted, although the tribunal ‘bent over backwards’ to consider China’s position.
While binding, the PCA’s verdict has no enforcement mechanism. Indeed, Rothwell said, ‘It’s quite a benign award. There’s no cease and desist, no damages.’ Given that China is a voluntary signatory to UNCLOS, its rebuttal of the decision calls into question the country’s integrity. Undoubtedly, it will amplify strategic rivalry between China and the US amid legal disagreement on the application of certain UNCLOS provisions.
Immediately after the tribunal’s decision, China sent an H-6K strategic bomber over the disputed Scarborough Shoal as a statement of intent. Since the award, China has continued to militarise its occupied features, and it has conducted multiple military drills, including one with Russia from 13-19 September. A key catalyst will be Chinese actions at Scarborough Shoal. If China attempts to build a base at this reef seized from the Philippines in 2012, it could swiftly draw American and Philippine ire.
(Photo: author)
Adm Wu Shengli, commander of the People’s Liberation Army Navy, warned, ‘The Chinese navy is prepared to react to any infringement of rights or aggression… Efforts to force us to succumb to pressure will only be counterproductive.’ He promised China would press ahead with construction on its occupied reefs.
One other area to watch is activities by Chinese state-organised maritime militia, essentially a third sea force of ‘blue hulls’ after its navy of ‘grey hulls’ and its coast guard of ‘white hulls’. Erickson testified before the US House Armed Services Committee on 21 September, ‘The Chinese operational concept entails a first line of militia, a second line of administrative law enforcement, supported by a third line of the military.’
This militia, thousands of personnel and boats – often fishermen – conduct ‘grey zone’ operations to alter the status quo. They may employ coercion as necessary, but without resorting to war. Chinese sources call such efforts ‘war without gun smoke’. They have already been involved in skirmishes such the 2009 harassment of USNS Impeccable.
Erikson continued: ‘Beijing works constantly in peacetime (and possibly in crises short of major combat operations with the US) to ‘win without fighting’, and thereby to further its unresolved land feature and maritime sovereignty claims. This is part of Beijing’s broader South China Sea strategy: consolidate disputed claims where it can delay resolution of issues it cannot yet settle in its favour, and coerce (deter and/or compel) potential opponents while limiting escalation.’
Taiwanese anger
The PCA’s rulings impinge on Taiwan’s own claims in the South China Sea (China merely adopted these from its predecessor government), the Republic of China (ROC) was angered by the decision too, calling it ‘completely unacceptable’. Taiwan occupies Taiping Island, the largest feature in the Spratlys. The tribunal decreed that Taiping is a rock and therefore does not generate any EEZ.
Colin said this conclusion was surprising. ‘My understanding is that the tribunal wished to simplify the situation (if none of the islands can generate an EEZ, it will be easier to delineate the EEZ from the coasts of the states because there will not be overlapping zones).’ Immediately after the verdict Taiwan despatched the naval frigate Di Hua and the Coast Guard Administration’s (CGA) cutters Wei-Hsing and Taitung to conduct patrols around Taiping. This mission lasted less than a week, demonstrating it was merely a flag-showing opportunity.
(Photo: Taiwan Coast Guard Administration)
Taipei argued, ‘The arbitral tribunal did not formally invite the ROC to participate in its proceedings, nor did it solicit the ROC’s views. Therefore, the award has no legally binding force on the ROC.’ It is true that Taiwan is not party to UNCLOS, but it now faces a decision whether to stick with its historical claims in the South China Sea or to align with international maritime law.
President Tsai Ing-wen’s administration has stressed the nation’s sovereignty over islands in the South China Sea, but it has made no mention of the so-called ‘U-shaped line’ or ‘historical waters’. Tsai wants to differentiate Taiwan’s claims from China’s and avoid the impression that Taipei and Beijing have a unified stance.
Tsai’s intention is to avoid trouble, and she hopes Washington and Tokyo will help take care of Taiwan’s interests such as joining the UN and recognising Taiwan’s existence. Dr Chung Chieh, a political observer and defence analyst, believes Tsai’s response to the award will be affected by her assessment of the potential impact on cross-strait relations. This will leave her no choice but to keep the 11-dash line but not to mention it officially.
Tsai’s newly installed Democratic Progressive Party (DPP) is cautious about exerting rights (e.g. over distant islands such as Kinmen, Matsu, Diaoyu and Taiping) because they sustain the history of the regime brought to Taiwan by Chiang Kai-shek in 1949.
However, the DPP will not lightly give up any territorial rights as this would indicate to China that Taiwan intends to change the current status, something that might create another Taiwan Strait crisis and force the US to intervene as it did in 1995-96.
Therefore, given these political factors, Taiping Island will retain its status quo, according to Chung, and no special troop deployments will occur there. Taiping is currently garrisoned by the CGA, and the government has assured that coast guard personnel will not be replaced by military ones.
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