July 20, 2017

Dr. Nong Hong

Dr. Hong is the author of a chapter for the newly released report, South China Sea Lawfare: Post-Arbitration Policy Options and Future Prospects. Her chapter, Post Arbitration South China Sea: China’s Legal Policy Options and Future Prospects, focuses on China’s strategic options in the South China Sea in the aftermath of the International Tribunal for the Law of the Sea ruling in 2016.

Abstract:
With the Award being released on July 12, 2016, the South China Sea arbitration case, lasting for more than three years, has come to an end. The Tribunal concluded in its thoroughly one-sided Award that many of China’s maritime claims in the South China Sea were contrary to the United Nations Convention on the Law of the Sea (UNCLOS) and that actions supported by the Chinese government had thereby violated the Philippines’ sovereign rights and freedoms.

In general, China’s legal policy approach to territorial disputes is based on its preference for negotiation and/or consultation directly with the other party, and its position of non-participation in and non-acceptance of the South China Sea arbitration case and its awards has been coherent. The end of the proceedings does not mean the end of the disputes between the two countries and within the region. However, it does have important legal and political implications for China and other states.

  • First of all, it has had detrimental impacts on China’s sovereignty claims and related entitlements.
  • Second, the Arbitral Tribunal expanded its jurisdiction and ignored the legitimate and reasonable claims of the coastal states.
  • Third, this unpleasant result helped the Chinese government justify its position of non-participation and non-acceptance as this ruling has severely harmed China’s national interests.
  • Fourth, it raises doubts about the role of UNCLOS in maritime dispute settlement. This has legal implications not just for China but for international law more broadly.
  • Finally, the Award does not lead to the settlement of the maritime disputes between the contracting states of UNCLOS in the South China Sea.

That said, the arbitration case has motivated China and ASEAN to speed up negotiations on a Code of Conduct. It has also created an opportunity for both China and the Philippines, which have openly expressed their willingness to engage in bilateral negotiations. These developments also raise important questions about the role that extra-regional actors should play in the disputes. The South China Sea has a complicated past and an uncertain future, but cooperation among nations could stabilize the region and bring tranquility to this important sea.

 

Publication Details:

Report Title: South China Sea Lawfare: Post-Arbitration Policy Options and Future Prospects

Paperback: 231 pages

Publisher: South China Sea Think Tank (April, 2017)

Language: English

ISBN 978-986-92828-2-6 (print)

ISBN: 978-986-92828-3-3 (ebook/pdf)

Link: http://scstt.org/reports/2017/1082