The South China Sea Since the Arbitration: Between Changes and Continuity

Apr 18 , 2017
When the arbitration award on the South China Sea was made public on 12 July 2016, the first logical question was whether the sentence would constitute as a major geopolitical turning point. Would it contribute to aggravating tensions in the region or, on the contrary, push states involved to choose a path of dialogue? My first  assumption was that the award that China considered as “null and void” would not fundamentally alter China's strategy and that the evolution of the situation would depend essentially on what would be done by the Philippines but also Vietnam, which could have followed the Philippines’ path.
More than eight months after, confrontational relations between China and its Southeast Asian neighbors, particularly those between China and the Philippines, have been appeased. The policy of Rodrigo Duterte, elected to the presidency of the Philippines in May 2016, is one of the main factors explaining this development. Instead of a policy of confrontation, which would have consisted strictly in applying the arbitration award, the Philippine president chose the path of dialogue, symbolized by the visit of Fidel Ramos to Hong Kong in August 2016 and then by his own visit to Beijing two months later. The improvement of Sino-Philippine relations was initially based on a compromise, perhaps a promise from Xi Jinping that he would not reclaim and develop the Scarborough shoal (an act that would go beyond “a red line” according to Duterte) and to authorize the return of Filipino fishermen to its waters.
Duterte's aim above all was to deepen economic relations with China and to attract Chinese investment in the infrastructure sector, in short to connect its country to the “21st Century Maritime Silk Road”, following the example of Malaysia, which has not opted for frontal opposition to China on the issue of the South China Sea, and in turn, appear to have benefited in recent years.
Vietnam, for its part, has not chosen legal action and remains divided between a policy aimed at maintaining good relations with the Chinese Communist Party and a policy aimed at defending face to face its territorial claims and maritime interests. With ASEAN, joint efforts have focused on the development of instruments with the objective of working on maritime safety. During the summits of ASEAN and EAS held in Vientiane on 6, 7 and 8 September 2016, the States of South-East Asia and China adopted a “Joint Statement on the Application of the Code for Unplanned Encounters at Sea (CUES) in the South China Sea” as well as “Guidelines for Hotline Communications in Response to Maritime Emergencies”. They also called for a full implementation of the 2002 Declaration on the Conduct of Parties in the South China Sea (DOC) and a continuation of negotiations aimed at the establishment of a Code of Conduct (COC), a first draft of which would have been since finalized, according to words of the Chinese Foreign Minister Wang Yi. This future COC could take the form of a binding crisis management mechanism in order to prevent the installation of “offensive weapons” on reefs and low-tide elevations and to defend the freedom of navigation of merchant ships in the South China Sea.
Could the arbitration award of 12 July 2016 have unexpectedly opened a cycle of appeasement between China and South-East Asian countries in the South China Sea, similar to what was observed in the early 2000s with the adoption of the DOC and then the signing of the treaty of friendship and cooperation between China and ASEAN? It is difficult to conclusively answer this question, since behind these changes are uncertainties and continuities likely to undermine at any moment the progress made.
One of the main uncertainties concerns Sino-Philippine relations who, despite their undeniable improvement in recent months, are pursuing short term pragmatic compromise, the risk of which is the benefits may be ultimately temporary. The internal disagreements within the Philippine administration on policies pursued vis-à-vis China and the United States, clearly visible in the sometimes contradictory statements between the Presidency and the Ministry of Defense, reveal the limits of the Sino-Philippine rapprochement.
The announcement in late March 2017 of the resumption of bilateral negotiations on territorial disputes and the decision by Beijing to invite the Philippine Coast Guard to visit China have undoubtedly the objective, from the Chinese point of view, according to the spokeswoman of Foreign Ministry Hua Chunying, “to advance on maritime cooperation” and “to inject a new vitality into the bilateral ties”. The possible establishment of a dialogue between the two Coast Guards, which can easily be seen as a prerequisite for a future dialogue between the two armies, is undoubtedly seen as an important step that could ultimately dispel the mistrust that still exists in the Philippines vis-à-vis China.
Another important uncertainty concerns the way in which the relationship between the United States, the main world maritime power, and China, the main emerging maritime power, will follow after the April 2017 meeting between Donald Trump and Xi Jinping. Continuity will most likely remain. Although the two countries have developed channels of dialogue on maritime security, as Dr Hong Nong has pointed out, the fact remains that the two countries maintain a strategic rivalry in the South China Sea, which is expressed, among other things, by their old disagreement concerning the right of innocent passage through the territorial sea and the holding of military activities in the EEZ of another country.
Finally, a third important factor is the complexity of the Chinese strategy in the South China Sea, determined by the semi-closed geographical configuration of its maritime space, the territorial claims inherited from the republican period, the contemporary economic and security stakes, the interests of institutional actors involved in national maritime policy and, finally, the United Nations Convention on the Law of the Sea (UNCLOS) that China has signed more for ideological than legal reasons, some clauses of which are not always considered as completely in line with its interests. Previously outlined in China Perspectives, the Chinese strategy in the China Sea is a long-term strategy, which aims at maintaining inherited territorial claims and gradually increasing a civilian and military presence in the disputed maritime area, and a reaction/anticipation strategy responding to initiatives taken or contemplated by the United States and/or other actors directly involved in the dispute, particularly the Philippines and Vietnam, which would be likely to threaten its interests and security.
Another characteristic of China’s strategy in the South China Sea is its ambivalence between the need to protect sovereignty and to defend national interests on the one hand and to promote economic cooperation and “regional connectivity” on the other. The launch of the 21st century Maritime Silk Road in 2013, while the reclamation operations in the Spratlys had begun (or were about to start), is an illustration of this ambivalence. In fact, one of the main challenges for China is to be able to dispel the idea of ​​a threat while remaining firm on issues of sovereignty and security. As such, the issue of the revision of the Maritime Transport Safety Law, a draft of which was published by the Legislative Affairs Office of the State Council on 14 February 2017, is quite illustrative. A few months after the arbitration, this revision represents a legitimate update of the current law, in force since 1 January 1984. Its main objective according to a Dagong bao (Ta Kung Pao) article published on 15 February 2017 would be also “to perfect the maritime power of the country”. In addition to provisions relating to sea rescue, maritime labor and safety standards, the draft contains clauses relating to the protection of maritime rights, in particular, the refusal to grant the right of innocent passage through the territorial sea to foreign military vessels without prior acceptance by the Chinese authorities, as well as a right of prosecution by Chinese maritime security agencies of suspicious vessels or vessels operating illegally “in waters under the jurisdiction of the State (guanxia haiyu).” However, this last terminology of guanxia haiyu is likely to be questioned in the case of the South China Sea because through it, the Chinese authorities legally rank not only internal waters, the territorial sea and the contiguous zone, but also the EEZ, the continental shelf and “any other maritime area within the jurisdiction of the People's Republic of China.” This last point raises again the question of the exact limits of the “competence” and indirectly that of the U-shaped line.
It is clear that the final version of this law will be important, in particular, to the articulation between the national law and UNCLOS provisions, not to mention the hypothetical Code of Conduct, and on the perception that neighboring countries will have on it. But it is above all, its implementation at sea, which will be decisive and will set the tone in the South China Sea.
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