The 2016 arbitral ruling in the South China Sea has changed the nature of maritime disputes.
When, in 2016, the Arbitral Tribunal issued its watershed decision in the case of the Philippines and China response of the global community was not very positive. According to the Asian Maritime Transparency initiative’s “arbitration tracking tool for support”, eight governments have publicly pleaded for the Tribunal’sTribunal’s decision to be respected. In contrast, 35 have issued positive statements but have not called for its implementation, while eight have publicly opposed the ruling. With the economic and diplomatic influence China has, it’s perhaps not odd that the amount of rebukes of the Tribunal’sTribunal’s decision isn’t more.
In the beginning, China refused to participate in the proceedings, however the TribunalTribunal nonetheless concluded that China was entitled to proceed. The Tribunal’sTribunal’s decision is not binding for both parties to the dispute – China and the Philippines. The Philippines and China Have altered the international legal dynamics of maritime disputes in the region and dealt with the major issues in the current marine law.
The arbitration case was based on the dispute resolution clauses included within Part XV of the United Nations Convention on the Law of the Sea (UNCLOS or the Convention). Therefore, it was able to address issues related to the law of the sea and is not at the heart of the South China Sea disputes, which is sovereignty over the islands in dispute.
What the decision by the Arbitral Tribunal did do was effectively disqualify China’s nine-dash line, ruling that China’s claims to historical rights within this line of discontinuity were nullified because they were not compatible with the rights granted under UNCLOS. The TribunalTribunal offered the first thorough international interpretation of the Regime of Islands, including the controversial issue of distinguishing fully entitled islands from “rocks”. The TribunalTribunal concluded that every one of the Spratly Islands and Scarborough Shoal, Both of which are recognized by China as belonging to the territory of China – were legal rocks.
The TribunalTribunal also concluded that China had violated its rights as a citizen of the Philippines in its waters offshore of its coasts by interfering in Philippine petroleum exploration and fishing by constructing artificial islands and failing to stop Chinese fishers from engaging in fishing. The TribunalTribunal ruled that China caused serious damage to the coral reef’s ecosystem and was in violation of its obligations to safeguard fragile ecosystems and the habitat of threatened, depleted or endangered species by its massive land reclamation program and the creation of artificial islands. These actions permanently damaged evidence about the original conditions of the features in dispute.
The result of the arbitral award should, if it is implemented, be to drastically reduce maritime claims that overlap from 80 per cent of the South China Sea lies within the nine-dash line up to 12 nautical miles in zones of territorial waters around the islands, disputable.
It is becoming more apparent there is a consensus that the bulk of South China Sea littoral states has their claims based on the Tribunal’sTribunal’s decision. It was evident in 2009 when Vietnam, along with Malaysia and Malaysia, submitted their statements to UN Commission on the Limits of the Continental Shelf (CLCS), which triggered protests and protests. The Malaysian partial application to the CLCS resulted in a flood of diplomatic notes. Based on these exchanges, there is a consensus among the Philippines, Malaysia, Indonesia and Vietnam all agree that the Arbitration award is the most authoritative version of the law in international practice. And that South China Sea islands are legally a rock and China’s claims of nine dots to the islands are not valid.
It’s not a big deal; however, these states are increasingly referring to the Tribunal’sTribunal’s decision to justify their position as important. The two countries Indonesia along with the Philippines, have made explicit reference to the decision in a diplomatic note regarding its ruling that there are no Spratly Islands generate exclusive economic zones or continental shelf entitlements, and the language in Vietnam’s diplomatic notice is completely in line with the findings of the TribunalTribunal. Additionally, extra-regional actors like countries like the United States, United Kingdom, Australia, France, Germany, and Japan have also joined in to defend UNCLOS and respect for the law and the award. The award case in 2016 has now substantiated the claim of maritime rights of the vast majority of South China Sea littoral states and the perspective of the extra-regional players and has had an enormous impact on the international legal landscape that is a part of the South China Sea disputes.
Naturally, the main condition lies in China, which has repeatedly and strongly opposed the ruling, and no mechanism could allow it to be applied. But the fact that the verdict from the Arbitral Tribunal is now embedded into the position of states within and outside the South China Sea suggests that the findings of the TribunalTribunal will not disappear as swiftly as Beijing would like. There is ample evidence that China will not just defend its claim to sovereign rights over all of the disputable South China Sea islands and maritime zones within the nine-dash line. In the worst-case scenario, this conflict of spatial and legal views could provide the basis for ongoing tensions and conflicts within the South China Sea as coastal states seek to claim sovereignty over “their” oceans and resources. At the same time, China remains committed to its claim to that nine-dash border.
