It’s been five years since the Permanent Court of Arbitration (PCA) adjudicated in favor of Philippines, an Arbitration case (Philippines vs China) concerning South China Sea. On 12 July 2016 the PCA concluded that China's ‘historic rights’ claims’ over the maritime areas inside the “nine-dash line” have “no lawful effect” in case these go beyond the entitlement as contained in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). However, it did not pass any judgment on “question of sovereignty over land territory” as also did not “delimit any maritime boundary between the Parties”. It is pertinent to mention that China is signatory to the 1982 UNCLOS and has ratified it.
The Philippines had made submissions before the PCA under Annex VII to the 1982 UNCLOS and in February 2013 China categorically stated that it would not participate in the case since the arbitral tribunal did not have jurisdiction over the case. However, on 7 December 2014, through a White Paper, Beijing explained its position with regard to the case. Notwithstanding that, the PCA took up seven of the 15 submissions made by the Philippines.
The Chinese defiance to participate in the arbitration proceedings and abide by the PCA’s ruling has alarmed the international community about Beijing’s commitment to uphold international law and in this case the 1982 UNCLOS. Numerous Chinese action and initiatives in the South China Sea have undermined regional security causing concern among the other claimants to the South China Sea. China has announced sovereignty over the whole of South China Sea including total control over many islands, reefs and features which are not only occupied by Brunei, Malaysia, Philippines, Vietnam and Taiwan and many others are contested with China or among themselves.
These is widespread reclamation activity in the South China Sea, and military infrastructure on these islands is being upgraded. It is a common sight to see Chinese military aircraft parked on the runways on these islands and supply ships make frequent visits to unload building materials. PLA Navy ships conducts regular exercises that simulate amphibious attack as also of landing troops through the air. In June 2021, a Chinese task force under the Southern Theatre Command of the PLA sailed 6,700 nautical miles between Indonesia and the Philippines. According to a media report “For China to develop expeditionary warfare capabilities, the PLA will continue to explore more areas instead of being limited to the neighbouring seas. More expeditionary exercises mean the navy is capable of reaching farther seas”.
It also merits attention that in his speech at a recent ceremony held in the Great Hall of the People to mark the 100th founding anniversary of the Communist Party of China (CPC), President Xi Jinping, awarded a medal to Wang Shumao, referred to as “a guardian of the South China Sea”, for his “participation in the construction of the Nansha Islands, developing civilian forces to safeguard China's legitimate rights in the South China Sea and leading the way in resolutely safeguarding China's territorial integrity and maritime rights without fear of death”.
China’s Defence Policy notes that it “exercises its national sovereignty to build infrastructure and deploy necessary defensive capabilities on the islands and reefs in the South China Sea, and to conduct patrols in the waters of Diaoyu Islands in the East China Sea”.
In 2020, the National People’s Congress (NPC) announced the Law on National Defence (LND) and General Wei Fenghe, the Minister of National Defense has noted that the international security environment is in a period of heightened strategic rivalry and China was confronted with “increasingly complicated security threats and challenges” and that China would “defend sovereignty, unity, territorial integrity and development interests” as also “safeguard overseas interests”. Further.
Although President Xi Jinping has professed and assured the ASEAN States that his country “believes in settling the disputes of the South China Sea through negotiation and consultation. We believe in managing differences through dialogue and cooperation”, there is enormous trust deficit and is reflected in sabre rattling in South China Sea against the other claimants through naval maneuvers, flying large formations of military aircraft (most recent being over Malaysia) and positioning Chinese militia onboard fishing vessels in West Philippines Sea.
At another level, in May 2021, China announced its new Coast Guard Act which is widely seen as violating 1982 UNCLOS. The Act has put the other South China Sea claimants on the defensive; interestingly, for some, the Act is construed as an act of war . Furthermore, under the new Act, it is feared, the Chinese Coast Guard (CCG) would conduct operations just like the PLA Navy and under Article 20 of the Act, the CCG is empowered to demolish “buildings, structures, and various fixed or floating devices" built by foreigners “in the sea areas and islands under our jurisdiction”, and Article 47 authorizes the agency to “directly use weapons if there is no time for warning or if there is a risk of serious harm after giving warning.”
China has turned more aggressive in the South China Sea since the 2016 PCA award to The Philippines. It is blatantly intimidating smaller neighbours and projecting military power against the US, Japan, India, Australia, etc. thereby undermining regional security.
Dr Vijay Sakhuja is Consultant Kalinga International Foundation, New Delhi.