June 2, 2016

By Nong Hong

Abstract

The existing territorial and maritime disputes in South China Sea have been pending for decades. Despite tremendous efforts on conflict management, the settlement of the decades-old maritime dispute in the South China Sea seems to be politically deadlocked. The Philippines, losing patience and confidence on negotiations on various levels, has stepped forward by utilizing the arbitration procedures under the United Nations Convention on the Law of the Sea and sued China on January 22, 2013. This paper attempts to answer such questions as, will the arbitration case resolve the dispute between the Philippines and China; what is the political and legal consequence following this; what is the impact of the Philippine’s arbitration initiative for the negotiation and drafting process of the Code of Conduct; what is the value and role of the UNCLOS in maritime dispute settlements in the South China Sea; and, in a broader sense, is the recent escalating tension in the South China Sea a consequence, explicitly or implicitly of the arbitration case. The author argues that despite the value ascribed  to the compulsory dispute settlement under UNCLOS, the South China Sea Arbitration Case does not resolve the problem between the two countries. Even more complicated, some have blamed the Philippines for triggering the negative reaction from China, which will lead to an uncertain post-arbitration situation. The author raises a question: Is the Philippines’ use of UNCLOS arbitration a genuine attempt to resolve its maritime dispute with China? Or is it merely a political game of international law?

Introduction

The South China Sea dispute is regarded as the most complex and challenging ocean-related regional conflict in East Asia. The security in the South China Sea is a concern for both regional countries, e.g. China, Vietnam, the Philippines, Malaysia, and extra-regional countries, e.g. the United States, Russia, India and Japan due to their strategic and economic interests in this region. The dispute springs from a number of sources, including competing historical claims on sovereignty, competition of access to energy, the significance of the region geographically, the threat it poses to maritime security, and overlapping maritime claims under the United Nations Convention for the Law of the Sea (UNCLOS). The latter in particular makes the South China Sea dispute even more complex than is the case in other regional disputes, involving the greatest number of parties of any maritime dispute  in the world. Conflict in the South China Sea will pose a threat to regional and international security. Seeking a peaceful solution thus becomes an important agenda for foreign policy makers.

Despite tremendous efforts in conflict management, the decades-old maritime disputes in the South China Sea seem to be at a  political deadlock. A quick solution appears to be difficult, if not impossible to obtain. Small-scale conflicts occurred among the disputant countries in 1970s and 1980s. The South China Sea disputes seem to have remained quiet from 2002 to 2009, which may be attributed to the Declaration of the Conduct of Parties in the South China Sea (DoC) signed by China and the Association of Southeast Asian Nations (ASEAN) states in 2012. The agreement allowed parties to explore ways to build trust and confidence in accordance with international principles, including United Nations Charter, and on the basis of equality and mutual respect.

Read more:

http://www.jpolrisk.com/the-south-china-sea-dilemma-a-political-game-of-international-law/

Nong Hong is Executive Director of the Institute for China-America Studies and a Research Fellow at both the National Institute for South China Sea Studies in China and the University of Alberta in Canada.

The NISCSS is authorized to re-publish this article on its website.