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A year after South China Sea ruling – threat to status quo

Jul 22. 2017
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By Tatsuya Fukumoto, 
Mayumi Oshige 
The Yomiuri Shimbun
Asia News Network

A year has passed since the arbitration court in The Hague made a verdict on the South China Sea issue.

The ruling completely denied the legality of China’s sovereignty claims and interests in the area. China rejected the ruling and is proceeding with “changing the status quo by force”. The Yomiuri Shimbun spoke to Japanese and Philippine experts on how they view the current situation. The following are excerpts from the interviews.

Shigeki Sakamoto, Doshisha University professor

The current situation regarding the South China Sea is as expected.

As there is no mechanism to enforce the arbitration court’s decision under the UN Convention on the Law of the Sea, there has not been any change since the ruling was made regarding China’s controlling of reefs in the South China Sea. China said the ruling is invalid and has been in bilateral negotiations with the Philippines. The two countries shelved the ruling following a meeting between the Chinese and Philippine leaders last October.

China clearly aims to render the ruling little more than a name. However, while Philippine President Rodrigo Duterte has agreed to shelve it for the time being, he has not abandoned the court ruling itself. He is apparently supporting the shelving of the ruling to obtain China’s economic assistance.

The court ruled that the nine-dash line (see below), which China insists on applying in the South China Sea, violates the Convention on the Law of the Sea and is thus invalid.

To make the South China Sea a “sea of China”, China is trying to pursue maritime interests and militarise the region. The judgement, which clearly denied the nine-dash line on which China’s claims are based, is of great significance.

The ruling said the rock reefs that China reclaimed to turn into artificial islands are low-tide elevations without territorial waters, or rocks with no exclusive economic zone or continental shelf, as referred to in Paragraph 3 of Article 121 of the UN Convention on the Law of the Sea. None of the reefs controlled by China have an EEZ, and the surrounding area is international waters. In high seas, all countries have freedom of navigation and fishing. No matter how much the two countries negotiate, it does not change the effect of the judgement by third-party countries.

We must not forget that the resolution adopted by the UN General Assembly on “the principles and guidelines for international negotiations” states “the purpose and object of all negotiations must be fully compatible with the principles and norms of international law”. We should pay attention to whether the negotiations between China and the Philippines are being conducted in accordance with the resolution so that they do not enter an agreement that violates the Convention on the Law of the Sea.

Not complying with the arbitration court’s judgement is nothing less than denying the rule of law in the international community. China, a permanent member of the UN Security Council, is required to respect the judgement as a major and responsible country.

After the ruling was handed down, China expressed a positive attitude toward “code of conduct” negotiations in the South China Sea with the Association of Southeast Asian Nations (Asean). However, China has been hesitant to acknowledge the legally binding force of the code. Negotiations may still need time.

The South China Sea issue is a matter of security for the entire region. China’s entry into other countries’ exclusive economic zones and continental shelves, as well as its restrictions on freedom of navigation, could be a life-or-death problem for Japan, which is dependent on maritime trade.

The international community needs to persistently call on China to adhere to the ruling. This will also help block China’s attempts to change the status quo by force. It is also essential for Japan to cooperate with the United States and other countries in continually pressuring China to implement the ruling.

Sakamoto, 67, specialises in international law. He is a former professor at the Graduate School of Law, Kobe University. He has also served as a member of the Human Rights Council Advisory Committee. 

Renato De Castro, professor at De La Salle University (The Philippines)

I would call the approach of China since the court’s verdict soft and hard. This is a typical art of war.

China and Asean are negotiating a framework agreement for a code of conduct in the South China Sea. It is just a framework. It may show the soft side of China, but actually it is delaying the process [of establishing a code of conduct] because nothing standard will come out in discussing the framework.

On the other hand, [China is taking] a hard approach, which is speeding up the militarisation of the Spratly Islands in the South China Sea. China is speeding up construction [of such facilities as missile shelters] on Fiery Cross and Mischief and Subi reefs, as the Asia Maritime Transparency Initiative at US think tank the Centre for Strategic and International Studies recently reported.

The approach we are seeing from China is something it would like us to see. The verdict did not stop China at all, but it did put it on the spot.

China was, however, able to buy off the Duterte administration [of the Philippines]. The administration is using China’s official development assistance offer to make money out of the ruling.

[The administration’s stance] became very apparent during the last Asean summit in April in Manila. The chairman’s communique released after the summit did not mention Chinese military build-up at all.

President Duterte has appeased China at the expense of the Philippine alliance with the United States.

In March this year, the Philippines and China signed an agreement that commits China to providing billions of dollars for infrastructure development. Actually, all those projects benefit China as the construction would be done by Chinese companies. [Manila’s China policy] is selling the country for money. The president is doing wrong in the long term.

I consider the current situation in the South China Sea to be “an eye of a storm”. The calm is just temporary.

China of course is tense vis-a-vis the United States, Japan and recently India. The US Navy’s “freedom of navigation” is aimed at rendering China’s claim [over the islands] useless. But if China does something [against this US move], that would trigger the “storm”.

The joint exercise in June in the South China Sea, in which the Maritime Self-Defense Force’s Izumo destroyer and the nuclear-powered aircraft carrier the USS Ronald Reagan participated, was symbolic. Japan is sending a message to President Duterte by dispatching Izumo.

You cannot expect anything from Asean [on the South China Sea issue]. Japan should strengthen the maritime capabilities of Southeast Asian countries challenging China’s expansive maritime claims.

Renato de Castro served as a consultant in the National Security Council of the Philippines during the Aquino administration. 

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