It has been five years since Permanent Court of Arbitration (PCA) made a ruling on July 12,2016 in favour of Philippines and declined Chinese claims of territorial seas on the manmade islands in South China Sea. The situation on the strategic waters has become grim and the international apathy paved way for Chinese way for Chinese maritime jurisdiction.
The international bodies such as UN, the global powers and the ASEAN dialogue partners have not been able to bring China to the negotiating table, and develop understanding on standard operating procedures. Much has changed in South China Sea with China expanding its strategic control and access to the seas. The PCA ruling which was declared on July 12 clearly adjudicated that maritime entitlements and the lawfulness of Chinese actions were questioned by the PCA, and it stated that it does not have any authority to rule over the question of sovereignty on land territories. China has debated the ruling even before the judgment came and its position paper which was released in December 2014, it clearly questioned tribunal’s jurisdiction on maritime seas.
Deciding on the merits of the case, the tribunal has stated that United Nations Convention of the Law of the Seas (UNCLOS) was incompatible with Chinese claims with regard to territorial seas in the hotly contested waters. It also doubted Chinese evidence of historically using exclusive economic control over the waters or its marine resources. The most impressive aspect of the ruling was none of the features that are above water at high tide have any entitlement of 12 nautical miles territorial seas, and it castigated Chinese act of heavily modified islands and construction done on submerged features. It again raised the issue of human habitation and the possibility of islands sustaining the human habitation on its own. It also stated that transient use cannot be constituted as a community settlement in history, and criticized China for its unilateral decision to violate sovereign rights of Philippines in its Exclusive Economic Zone. It has also observed that these kinds of construction activities where detrimental to the marine environment and have endangered different species of coral, sea turtles and giant clams in that region.
Interestingly even after five years of the PCA ruling there has been no respite from the Chinese aggressive postures, and incremental extension of Chinese strategic actions and control of the seas. China has now been deploying its maritime militia and Coast Guard vessels along with hydrographic survey vessels in areas such as Vanguard bank, Whitsun reef, Reed banks and extended encroachments until Natuna islands (which is under Indonesia). This ripple strategic zone has undermined the legitimate exploration of oil and gas by the littoral countries in their exclusive economic zones and even fishing in the traditional fishing areas in South China Sea. As this region is the third largest fishing grounds in the world and host many exotic species of fish is as well as is one of the richest reserves of oil and gas, it is expected that the tensions will escalate in near future.
Given the fact that after the PCA ruling there has been strong statements and criticism of China on these grounds but no military response or effective implementation of the PCA ruling by the major players have given a free hand to China to further develop those islands and undermine the marine life in that fragile ecosystem.
As China is celebrating its 100 years of establishment of the Communist Party of China rule and there are tensions including India-China border tensions, tensions between China and Japan on Senkaku islands, frequent infringement of airspace by China across Taiwan straits and Chinese submarines activities in the Indian Ocean region, the military tensions are growing in its periphery.
Even though there has been multiple exercises conducted by the US, Japan, India and Australia in that region as well as group sails conducted by few of the countries, the tangible achievement on ground is missing. The negotiations with regard to Code of Conduct on the South China Sea has also been put in limbo by Chinese in the pretext of undertaking bilateral negotiations with the interested parties, particularly other claimants of South China Sea islands as such. This is seen as delaying tactics by China to undermine the claims of other littoral countries and project its own power in the region.
This year has seen deployment of Chinese maritime militia in Whitsun reef and also laser attacks on the US surveillance planes last year. These has been criticised by the US Secretary of State as well as Secretary of Defence but global apathy on the issue has led to belief that China is dictating terms in defining the maritime order in South China Sea. The noncommittal attitude which has been undertaken by the US has also put the Visiting Forces Agreement (VFA) between Philippines and the US under stress so much so that the Philippine President Duterte has even threatened to withdraw from the VFA. Even though the visiting forces agreement has survived this scare but it might be just a matter of time when the US loses its relevance in the Asian theater.
It has been seen even with regard to the Malaysia, Vietnam, and Philippines extended continental shelf representation in the UN there has not been much counter moves against Chinese actions. The five years have exposed the limitations of the international systems and also questioned the role that has being played by a ASEAN in mediating between China and the other claimant countries for ensuring quick implementation of the Code of Conduct and defining the standard operating procedures in this region. Overtime it has been seen that there is no clear cut strategy which could be adopted by the other dialogue partners and the ASEAN countries in protecting the interest of their members as well as making a clear cut unified stance against Chinese activities in South China Sea.
The last five years have seen that the PCA ruling has failed the ASEAN community while one of the UN Security Council members is adamant at defining the rules of engagement and order at sea. It is well acknowledged that military action cannot be the resolution of the crisis but during this COVID-19 resurge there is a need for more effective measures as well as coercion against China so that sensible and acceptable outcomes could be achieved.