14.10.2016 Author: Dmitry Mosyakov

Permanent Court of Arbitration Decision on the situation in the South China Sea and its Reception

23423123123123Today, one of the key problems in understanding the future course of events in the conflict in the South China Sea is to identify how the decision of the Permanent Court of Arbitration at The Hague will affect the settlement process.

On the one hand, there are strong indications that the impact would be largely negative, as the Permanent Court of Arbitration has rejected virtually all of China’s arguments concerning the rights of the PRC on the waters and islands in the South China Sea, and has fully taken the Philippines side. In its decision, the Court said that it did not find any grounds for China’s territorial claims in the South China Sea within the so-called ‘nine-dash line’. Furthermore, it stressed that China had no right to claim an exclusive economic zone around the Spratly Islands. A statement released on July 12 this year stated, “There is no legal basis on which China can claim historic rights to the waters of the South China Sea.” The Court also determined that the construction of artificial structures on the Spratly archipelago reefs and shoals and attempts to pass them off as fully natural islands, is illegal. In addition, the Court declared that restricting access to Philippine fishermen by China to the Scarborough Shoal, located off the coast of the Philippines, is unlawful. Beijing’s activities on the Spratly Islands were also deemed as detrimental to the region’s natural ecosystem.

For China, it is unacceptable that the ‘historical right’, to which Beijing constantly refers as the main proof of its rights, has been almost completely excluded off the process. The Court stated that the solution to the conflict may take place solely on the basis of contemporary International Law and the 1982 UN Convention on the Law of the Sea.

As might be expected, the Court’s Decision has faced sharp rejection and very negative reaction in Beijing. It was not recognized and was condemned by both the Chinese President, Xi Jinping, and its Premier, Li Keqiang. The Chinese Foreign Ministry called the Decision invalid and unbinding, stating that the Chinese government neither accepted nor recognized it. Chinese Foreign Minister, Wang Yi, especially stated that “China does not recognize (the determinations) and did not participate in the Court process”, that China’s sovereignty over the disputed territories in the South China Sea “is supported by historical and jurisprudential evidence and is not subject to a Court decision.” At the same time, the minister also reiterated that “China continues to call on the resolution of disputes by peaceful means, through negotiations and consultations, while promoting peace and stability in the region.

However, if China’s reaction was quite predictable, the reaction of the winning party in the Court under the new President of the Philippines, Rodrigo Duterte, was more than unexpected.
Of course, there was a national jubilation. On the other hand, the President and his inner circle displayed a more than reserved reaction to the Court Decision. Vietnam has also welcomed the Decision and stressed that it strongly supports a peaceful way of resolving disputes, and calls to withdraw from threats to use force, but for dialogue and negotiation.

By studying the reaction to the Court Decision, an interesting situation may be noticed when countries that are directly concerned with and involved in the conflict exhibit restraint, while the countries that are not directly involved in the conflict come out with much more stalwart declarations on the obligations to implement the Court’s decisions.

Japan, for example, called on the countries concerned to abide by the Court Decision. Tokyo has expressed hope that this will lead to the peaceful resolution of conflicts in the South China Sea. Australia also called on China to abide by the Decision of the Court. In Washington, the Decision of the Permanent Court of Arbitration was called “an important contribution” to the resolution of territorial disputes in the region. This verdict should be regarded as “final and legally binding”, according to the US State Department. White House Press Secretary, Joshua Earnest, said US authorities insist that China and the Philippines have to fully comply with the verdict of the Permanent Court of Arbitration at The Hague on the disputed Paracel Islands, Spratly Islands and Scarborough Shoal in the South China Sea.

India has taken a more cautious approach. Indian Foreign Ministry called on all parties to respect the UN Convention on the Law of the Sea. In its statement, it noted that “states should resolve disputes through peaceful means without threat or use of force, and exercise self-restraint in the conduct of activities that could complicate or escalate disputes, thus affecting peace and stability.” The statement particularly stressed that India supports freedom of navigation and flight over sea and unimpeded commerce, based on principles of international law.

Reaction of Russia to the Decision of the Permanent Court of Arbitration has been expressed in a statement by the Russian Foreign Ministry, where, in particular, it was pointed out that “Russia’s stance has been consistent and invariable: we are in favor of seeing the states involved in the territorial disputes in the above waters strictly complying with non-use of force and continuing to search for ways towards a political-diplomatic settlement on the basis of international law, starting with the 1982 UN Convention on the Law of the Sea. Russian Foreign Ministry Representative stated that “Russia supports the efforts of the ASEAN and the Chinese People’s Republic towards working out a code of conduct in the South China Sea”, stressing, however, that Moscow is not “a participant in territorial disputes in the South China Sea and will not be dragged into them.”

Analyzing this paper shows that it is almost identical with the statement made after the official visit of the President V.V. Putin to Vietnam in November 2013. Then, they have signed a Joint Statement on Strengthening the Comprehensive Strategic Partnership between the Russian Federation and the Socialist Republic of Vietnam. In it, the Russian President and President of Vietnam, Truong Tan Sang, noted that territorial and other disputes in the APR should be resolved exclusively through peaceful means, without resorting to force or threat of force, in accordance with applicable international law, primarily the UN Charter and the 1982 UN Convention on the Law of the Sea. They jointly called for the implementation of the 2002 Declaration on the Conduct of Parties in the South China Sea and for the early adoption of a legally binding Code of Conduct in the South China Sea.

At the G20 meeting in Hangzhou at the beginning of September 2016, President Putin replied in the negative to the question of whether Russia recognizes the legitimacy of the Decision of the Permanent Court of Arbitration at The Hague, explaining that “China did not participate in the consideration of this matter, and therefore the Tribunal’s decision cannot, in our view, be legally binding.” At the same time, President Putin did not deviate from the essence of the Russian position that the conflict should be settled by peaceful means on the basis of international law, primarily the UN Charter and the 1982 UN Convention on the Law of the Sea. It should be noted with some optimism that this position was understood and appreciated in Beijing. In her statement, Chinese Foreign Ministry Representative expressed support for the position taken by the Russian President. At her daily briefing, the official representative of the Chinese Foreign Ministry, Hua Chunying, told reporters, “We paid attention to the statement made by President Putin regarding the decision by the International Court of Arbitration on the South China Sea, and we appreciate it. President Putin’s position shows Russia to be objective and fair, and represents the voices of justice from the international community.” She also stated that, “If a country truly cares about peace and stability in the South China Sea, it will support China’s efforts to peacefully resolve the dispute with the parties directly concerned in accordance with international law.”

This statement, in which, after a long pause, China does not talk about its undeniable rights, but about the negotiations with its neighbours and about finding a compromise, is largely symbolic in nature. However, the Philippine-Chinese talks that were held in Hong Kong after the Court’s Decision, are also symbolic. China clearly does not want to stand alone in the face of a common position of the international community that advocates peaceful solution to the conflict. Moreover, it also appears that the neutral position that the Russian side has consistently adhered to and has attached great importance to peaceful means of settling the conflict in the South China Sea without use of force, turns to be an important and influential factor that will balance the situation in the South China Sea.

At the same time, it is also clear that the optimism that may be felt today is based on a rather fragile foundation. In fact, the United States shall in no way be satisfied with reaching a compromise in the South China Sea. And it is almost certain that they will utilize all their substantial opportunities to re-exacerbate the situation, since it is only in the event of further conflict that they are able to continue to promote their plan to establish the so-called cordon sanitaire out of the ASEAN countries against China, while remaining behind them. Such course of events in the years to come would be able to turn the region into a field for a total global stand-off.

Dmitry Mosyakov, Professor, Doctor of Historical Sciences, Director of the Centre for Southeast Asia, Australia and Oceania and the Institute of Oriental Studies of the Russian Academy of Sciences, exclusively for the online magazine “New Eastern Outlook


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