Need for resolution of SCS conflict following PCA ruling

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Arleigh Burke-class guided-missile destroyer USS Dewey transits the South China Sea May 6, 2017.

The South China Sea (SCS) conflict is still raging with China on a rogue mission that is pitting it against the rest of the world.

The conflict in the seas bordering the Southeast Asian region and China did not see Beijing pausing in its occupation of the SCS.

It also showed attempts by Beijing not to respect the international ruling that came from the Permanent Court of Arbitration (PCA) two years ago.

The disrespect, though expected since China did not recognise the PCA ruling, goes against international norms.

On July 12, 2016, the South China Sea Arbitral Tribunal issued a unanimous award in favour of the Philippines in the SCS conflict.

The legally binding award has demolished China’s expansive historical claims. It pointed out that Beijing had no entitlement to an exclusive zone within 200 miles of the Spratly Islands.

International maritime lawyers said the landmark judgment upholds a rule-based international maritime order enshrined in the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

The UNCLOS of which both the Philippines and China are parties was adopted as a “constitution for the oceans,” in order to “settle all issues relating to the Law of the Sea”.

However, China vehemently rejected the ruling, making fun of the remarks in the official document and reacted eerily to the loss at the PCA.

In an attempt of defiance, Beijing said the essence of the subject-matter of the arbitration is territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the UNCLOS.

The Chinese also said the Tribunal lacked jurisdiction over the Philippines’ claims adding that the proceedings were not objective or just. Thus it said it would not recognise nor implement the award.

Nevertheless, the only consolation for the international community in the affair is that China has been contained to a certain extent. It refrained from further rhetoric on the issue and agreed to actively engage in a legally binding Code of Conduct (COC) regarding the disputed seas.

U.S. news network CNBC reported on May 2, 2018, that China had installed anti-ship cruise missiles and surface-to-air missile systems on three features in the Spratlys, namely Fiery Cross Reef, Subi Reef and Mischief Reef.

This is indicative of China’s intent to pursue a confrontational policy in the SCS.

Note that in April China held a grand naval parade and a week-long series of live-fire drills in the South China Sea that involved a large Chinese naval flotilla, including aircraft carrier Liaoning.

On April 18, two Xian Y-7 Chinese military transport planes were spotted on the Mischief Reef for the first time.

But with the U.S. abandoning the “pivot” strategy, China adopted a more confrontational approach in the SCS.

The U.S. said its intention is to enforce internationally recognised rights for any nations to use their freedom of navigation in international waters.

But this fell short of scaring the Chinese military away. Instead, it resulted in China’s aggressive responses.

Nevertheless, the U.S. stance got the Asean to rally as a united force calling for more external countries such as Australia and Japan to voice their common concerns over China’s domination of the SCS.

They also spoke of getting China to adopt a more “diplomatic” approach rather than the aggressive one that it used to take.

In response to this, China adopted a less evident mode in carrying out its subversive activities.

China quietly deployed communications and radar jamming equipment on the Fiery Cross Reef and the Mischief Reef in the Spratlys, which has sparked a diplomatic protest from Vietnam.

In another less noticed but equally important development, the National People’s Congress of China decided in March that the China Coast Guard would be placed under the People’s Armed Police Force.

China has also pushed militarization in the waterway, especially on seven artificial islands in the Spratlys, to strengthen its power projection capabilities and to deter against maritime rivals.

But the Asean is not sitting hands tied.

At the 20th Asean-China Summit on 13 November 2017, Asean and China agreed to officially commence substantive negotiations on the text of the COC.

Part of the positive steps to resolve the conflict is the Joint Working Group and the Senior Officials’ Meeting on the DOC that were tasked as the bodies responsible for drafting the COC.

These are positive steps towards peaceful resolution of disputes in the SCS on the basis of international law. Based on this, parties should initiate negotiations for a substantive and legally binding COC soon.

In the end, the Asean should strive for unity in dealing with South China Sea issue, Asean should also adopt a common policy towards China in the South China Sea urging China to respect the PCA ruling.

It is salient that the Asean does not stop criticizing China’s artificial island construction, which destroys the marine ecological environment and raises the tension.

It has to stress the importance of the completion of the COC as a legally binding document which is in accordance with international law, including the 1982 UNCLOS and the 2016 PCA ruling.

Moreover, all the concerned parties, especially China, must abide by the rule of law. China and the U.S. also need to engage more actively in resolving the SCS disputes.