Three years after it was launched, the curtain is coming down on the Philippines’ South China Sea arbitration case, a carefully orchestrated political farce. Back in 2010, the US played up the South China Sea issue at the Foreign Ministers’ Meeting of the ASEAN Regional Forum and then announced its “rebalancing” strategy in the Asia-Pacific. Ever since then, the tranquil South China Sea has been pushed into the headlines of the international media, and buzzwords like “freedom of navigation,” “militarization” and “arbitration” have jumped into the spotlight one after the other. However, those armed with reason are ready to take a step back from all the hustle and bustle to see through the past few years’ misrepresentations and distractions and get a clear understanding of the South China Sea issue.
The foremost question is whether freedom of navigation in the South China Sea has been affected, which is high on the list of concerns, especially for Singaporeans. For this question to be answered, a clear distinction must first be drawn between two interpretations of “freedom of navigation.”
One is freedom of navigation endorsed by international law. Reuters has conducted interviews with the heads of international and regional shipping companies as well as shipowners’ associations, reaching the conclusion that commercial navigation in the South China Sea has not been affected. Nor have I heard any complaint in this regard from Singaporean friends in the shipping industry. The plain fact, therefore, is that freedom of navigation in the South China Sea has never been affected. It remains one of the world’s safest and busiest shipping lanes for commerce, handling 40 percent of global cargo shipped by sea. As much as 70 percent to 80 percent of China’s trade and energy resources pass through the South China Sea, so if freedom of navigation in these waters had really been undermined, China would be the first to defend it.
And then there are the freedom-of-navigation operations conducted by the US. Not long ago, for the third time in one year, a US warship sailed through waters adjacent to China’s Nansha islands and reefs (Spratly archipelago), to challenge China’s allegedly “excessive maritime claims.” What is strange is that though it is not a party to the United Nations Convention on the Law of the Sea (UNCLOS), the US has taken it upon itself to determine whether other countries’ maritime claims are excessive or not. Similarly, without the mandate or authorization from the UN or other international organizations, the US has made it its business to sail through other countries’ territorial or even internal waters to assert its “freedom of navigation and overflight.” In fact, the so-called freedom-of-navigation operations by the US can be traced back to 1979, when it resorted to such unilateral actions in defiance of the then incoming UNCLOS.
The very nature of freedom of navigation in the US mind is “American exceptionalism” in the seas, which bestows upon the US the privilege to roam beyond international law and take on the role of both judge and police. Its operations are not merely against China, nor are its sights limited to the South China Sea. Instead, its aim is US maritime hegemony which ensures it can go anywhere around the globe. Such “freedom” goes against UNCLOS and customary international law, and deviates from the freedom of navigation proclaimed by the majority of countries in the world. History shall be the best judge on whether such “freedom” is a blessing or a curse for countries in the region.
The second question is whether the South China Sea has really been militarized. Over the past few decades, certain countries have long been training troops, setting up military radar installations, and deploying offensive weapons such as artillery and missiles on China’s Nansha islands and reefs that they had illegally occupied. In 2011, the US announced that it would deploy 60 percent of its armed forces in the Asia-Pacific. In the meantime, the US began to strengthen military alliances, enhance force projection, and stage military exercises around the South China Sea. The US conducted up to over 1,200 flights of close-in reconnaissance against China, which means an average of three flights per day, overtaking the frequency of similar operations against the former Soviet Union during the cold war period.
As such, it is evident that the militarization of the South China Sea has been started long ago. In terms of the status quo in the South China Sea, the above-mentioned facts represent the true picture today.
However, someone has turned a blind eye to these facts, accused China of breaking the status quo, and deliberately associated China’s construction activities with the militarization in the South China Sea. By no means should China be the scapegoat for the militarization. As was mentioned, China was not the first country to conduct construction activities in the South China Sea, and more importantly, the focus of China’s construction has been to enhance its capacity in providing public services. For example, the lighthouses on China’s Huayang Jiao (Cuarteron Reef) and Chigua Jiao (Johnson South Reef) have guided numerous commercial ships onto the right routes, and their lights will continue to beacon.
Someone has also pointed the finger at the speed and scale of China’s construction, but that is merely a deceptive argument. The speed, scale, or even the sophistication of construction are determined by many factors. On one hand, there are China’s national responsibilities and obligations, such as maritime search and rescue, and maintaining navigation security. On the other, there are also military pressures and provocations faced by China. By deploying the necessary defense facilities, China is exercising its right to self-preservation, responding to what some countries have long been doing in the South China Sea, and enabling itself to better manage the situation and avoid further losses.
China was not the first country to conduct construction activities in the South China Sea, and more importantly, the focus of China’s construction has been to enhance its capacity in providing public services.
How much one presses a spring determines how forcefully the spring will bounce back. On issues concerning territorial sovereignty and maritime interests, the Chinese people have endured their full share of suffering in modern history. Today’s China will never bow to or recoil from the pressures mounted by regional and international powers.
The third question is what is the essence of the Philippines’ arbitration case? The case is but a political farce with contrived performance. As the plot unfolds, more and more people are realizing what’s behind this arbitration case and are thinking seriously about the deep impact of the case on the South China Sea, the region, and beyond.
By launching the arbitration case, the Philippines circumvented the crux of its disputes with China, namely the disputes over territory and maritime delimitation in some of the Nansha islands, and flagrantly violated its agreement with China on resolving disputes through negotiation and consultation. In its contrived spin, the Philippines re-framed the case to be about the interpretation and application of UNCLOS, so that it could abuse the compulsory arbitration procedure provided by UNCLOS.
Moreover, the arbitrary tribunal has overlooked the preconditions UNCLOS set on applying the compulsory arbitration procedure, neglected China’s declaration on optional exclusion made under the Article 298 of UNCLOS, and wantonly expanded its jurisdiction. All these are like a series of scenes in a carefully orchestrated play, progressing along a premeditated plot.
The arbitration case reminds us that the international community needs to reflect on how to interpret and apply the UNCLOS compulsory arbitration procedure in a comprehensive, accurate, and bona fide manner. No matter what the award might be, this arbitration case has set a poisonous precedent where any dispute, as long as it is cleverly packaged, can be filed for arbitration regardless of whether or not they concern territorial sovereignty or maritime delimitation. Such a precedent has rendered the declarations on optional exclusion made by more than 30 UNCLOS contracting states nothing more than pieces of paper, and also put a stark question mark on the credibility of the UNCLOS dispute settlement mechanism.
The arbitration case has also raised the alarm that someone is attempting to sabotage the authority and effects of the Declaration on the Conduct of Parties in the South China Sea (DOC), and is spinning the award into a legal reality or a new starting point for future negotiations. These people have apparently underestimated China’s resolve to safeguard its territorial sovereignty and maritime interests. They have also misjudged the sincerity of both China and the ASEAN countries in comprehensively implementing the DOC and upholding the peace and stability of the South China Sea. Whatever the award will be, China will not accept or recognize it. This position has not and will not change.
What’s happening during the arbitration case also tells us that justice will prevail. Currently, more than 40 countries and regional organizations have voiced unequivocal support for China’s position on the case. Among them are some ASEAN countries, countries outside the region, and even regional organizations like the Arab League. Even in some western countries, many experts of international law have issued professional, serious, and fair comments that agree with China’s position. These experts have pointed out that the award by the arbitrary tribunal does not have any legal effect.
Many people are concerned with the situation in the South China Sea after the arbitration case. Some have realized, including those visionary figures in the Philippines, that arbitration cannot solve the disputes between China and the Philippines. The Philippines’ president-elect Mr. Rodrigo Duterte has also sent out positive signals in this regard, expressing the willingness to have direct dialogue with China on the South China Sea issue.
Historical trends will not be stopped. The political farce of this arbitration case will soon draw its curtain, and China as well as the Philippines and other claimant states will have to go back to direct and equitable negotiations, so as to reach mutually acceptable solutions. And this is the only right path towards resolving the South China Sea disputes.