South China Sea: How to Enforce the Tribunal Decision?

South China Sea: How to Enforce the Tribunal Decision?

What you need to know

Enforcement of the international ruling in favor of the Philippines in the South China Sea dispute now depends on the international community, the lawyer representing the Philippines says.

The Permanent Court of Arbitration (PCA) yesterday made a landmark decision in a case brought by the Philippines over territorial disputes in the South China Sea.

The Hague-based Court found that China has no "historical title" over waters or resources in the South China Sea and said that part of the area could be included in the Philippines exclusive economic zone.

The Philippines’ lead counsel, Paul Reichler, has told media that enforcement of the decision will now be contingent on the reaction of other affected states and "the international community in general" – a number of other countries have claims in the region, including Taiwan, Indonesia, Malaysia and Vietnam, while the U.S. has a military presence in the region.

"It will depend to a great extent on how vigorously all of the affected states, all of the states which have been prejudiced by the nine-dash line, assert their rights against China,” Reichler says.

China, which did not take part in the arbitration proceedings, has long-held that the Court does not have jurisdiction in the matter.

“China has adopted a position on the nine-dash line, where they claim exclusive rights and exclusive access to resources in almost 90% of the South China Sea," Reichler says.

China's Ministry of Foreign Affairs yesterday “solemnly” declared “that the award is null and void and has no binding force. China neither accepts nor recognizes it.”

“China's territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected by those awards,” the Ministry said in a statement. “China opposes and will never accept any claim or action based on those awards.”

China state-owned Global Times quoted Ministry of National Defense spokesperson Yang Yujun (楊宇軍) saying that the Chinese military “will resolutely protect its national sovereignty, security and maritime rights and interests, safeguard regional peace and stability, and cope with all kinds of threats and challenges.”

Reichler suggested China’s ongoing rhetoric is aimed at intimidating the other parties in the area.

If the other states “refuse to be intimidated and continue to insist that their rights under UNCLOS [United Nations Law of the Sea Convention],” this could push to a “different response” from China, Reichler says.

“The way out for China, and all of the states in the region, is to sit down and negotiate, peacefully of course, a solution where everybody’s rights are respected, including those of China.”

Foreign policy challenges

Joseph Chinyong Liow is a senior fellow at Washington D.C.-based think tank Brookings Institution.

For the Chinese leadership, he says, the case will drive intense internal discussions about how to proceed.

“Many analysts have the not-unfounded concern that hawkish perspectives will prevail in this debate, at least in the short term — fed by the deep sensibilities to issues of security and sovereignty, and a (misplaced) sense of injustice,” he says. “This would doubtless put regional stability at risk.”

Liow also says that as Beijing has continued to reject the Court’s jurisdiction, and given the comprehensive nature of the court’s rejection of China’s claim, China is now likely to “dig in its heels.”

“This, in turn, will feed the conspiracy theories swirling around Beijing that the court is nothing but a conspiracy against China.”

Liow says the U.S., which has looked to push back against Chinese assertiveness in the South China Sea, “must be careful not to inadvertently contribute to the militarization of the region.”

“There is talk about the deployment of a second carrier group to the region, and the U.S.S. John C. Stennis and U.S.S. Ronald Reagan are already patrolling the Philippine Sea,” he says.

Liow says while this move would enhance the “deterrent effect” of the American presence, Washington should be mindful that China’s territorial claims is “also informed by a deep sense of vulnerability, especially to the military activities that the United States conducts in its vicinity.”

White House responds

The highly-anticipated decision grabbed headlines around the world and has drawn comments from across the international community, including the White House.

The U.S. has urged a defiant China to respect The Hague’s legally binding decision.

U.S. State Department spokesperson John Kirby said the U.S. “expresses its hope and expectation that both parties will comply with their obligations.”

“In the aftermath of this important decision, we urge all claimants to avoid provocative statements or actions,” he said. “This decision can and should serve as a new opportunity to renew efforts to address maritime disputes peacefully.”

He noted that parties to UNCLOS agree to the Convention’s compulsory dispute settlement process to resolve disputes – both China and the Philippines have joined the convention.

“As provided in the Convention, the Tribunal’s decision is final and legally binding on both China and the Philippines.”

The department did not comment on the merits of the case, saying it was still studying the decision.

Beijing has previously said that as many as 60 countries publicly support its position that the arbitration tribunal was illegitimate. However, the Asia Maritime Transparency Initiative puts the number at 10.

First Editor: Olivia Yang
Second Editor: J. Michael Cole


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