The New Diplomatic Waves in the South China Sea

Glimpses of the horizon ahead after the UN ruling: Southeast Asia is cautious, the US and its allies hail the ruling, Pakistan backs Beijing and India is admirably nuanced.

Six governments have claims across the waters of the South China Sea. Credit: Reuters

Six governments have claims across the waters of the South China Sea. Credit: Reuters

The United Nations Convention on the Law of the Sea (UNCLOS) arbitral tribunal award strongly supports the Philippines’ submission and demolishes China’s expansive claims in the South China Sea. The award has created new diplomatic waves in these already troubled waters. China, which refused to participate in the proceedings, has angrily rejected the award as “null and void”. Foreign minister Wang Yi dismissed it as a “political farce”. Speaking on the eve of the award, a Chinese defence ministry spokesman emphasised that, regardless of the decision of the arbitral tribunal, the country’s armed forces “will resolutely protect the country’s national sovereignty, security and maritime rights and interests”.

How will the award influence the course of developments in the maritime dispute? Early international reactions to the tribunal ruling provide some clues.

Reactions from Southeast Asia

Unlike China, the Southeast Asian parties directly involved – Philippines, Vietnam, Malaysia and Indonesia – have reacted with restraint and circumspection.

Manila, the party that took the case to the tribunal, called on all concerned to “exercise restraint and sobriety”, affirmed its “respect for the milestone decision as an important contribution to ongoing efforts” to address the issue and reiterated its commitment to “pursue the peaceful resolution and management of disputes”.

Without directly referring to the award, Hanoi declared its support for the resolution of disputes in the “East Sea” through “peaceful means, including legal and diplomatic processes… in accordance with international law, including the 1982 United Nations Convention on the Law of the Sea, maintenance of regional peace and stability, security and freedom of navigation and over-flight in the East Sea, and respect for the rule of law in the oceans and seas”.

Kuala Lumpur issued a statement “noting” the award and calling for a peaceful resolution of the dispute through “full respect for diplomatic and legal processes, relevant international law and 1982 UNCLOS”. It also called for “self-restraint in the conduct of activities that may further complicate disputes or escalate tensions”.

Jakarta called on all parties to “exercise self-restraint and refrain from any actions that could escalate tensions… and to respect international law including UNCLOS 1982”.

With the exception of the Philippines (which was directly involved in the case), the regional parties avoided a direct statement welcoming the award, at most only “noting” it. None of them directly called on China to abide by the tribunal ruling. They confined themselves to emphasising the importance of UNCLOS, while calling on all parties to refrain from escalating tensions. It is clear that they feel it would not be prudent to provoke China, thereby aggravating tensions. The extreme power imbalance with China explains the circumspect stance of these countries.

How the US, Japan and Australia have reacted

By contrast, the US and its regional allies have been forthright in hailing the tribunal award and calling for a resolution along its lines. The state department spokesperson said that the tribunal’s decision is “final and legally binding on both China and the Philippines”. He expressed Washington’s “hope and expectation that both parties will comply with their obligations”.

Japanese foreign minister Fumio Kishida spoke on similar lines. He stated that the tribunal’s award is “final and legally binding on the parties to the dispute under the provisions of UNCLOS… Japan strongly expects that the parties’ compliance with this award will eventually lead to the peaceful settlement of disputes in the South China Sea”.

Australia called for the Philippines and China to “abide by the ruling, which is final and binding on both parties”. Likewise, New Zealand’s foreign minister, Murray McCully, called on all parties to “respect the Arbitral tribunal ruling”.

The tribunal’s award is unlikely to encourage the Southeast Asian claimants to adopt more assertive policies in the South China Sea but it remains to be seen whether the US, and possibly Japan at some future date, will invoke the award in order to challenge more vigorously Chinese maritime and air traffic controls in what Beijing claims to be its territorial waters and air space in the contested area. Australia and New Zealand may be expected to provide political support.

Where India and Pakistan stand

The Indian statement on the South China Sea is particularly well-crafted and nuanced. The statement “noted” the tribunal award, called on states to resolve disputes “through peaceful means without threat or use of force and exercise self-restraint” and urged all parties to show “utmost respect for the UNCLOS”. These elements of the statement broadly followed the line taken by Malaysia, Indonesia and Vietnam.

The additional element in the Indian statement was a strong emphasis on the freedom of navigation and overflight as well as unimpeded commerce “based on the principles of international law, as reflected notably in the UNCLOS”.

“Sea lanes of communication passing through the South China Sea are critical for peace, stability, prosperity and development,” the statement added, emphasising India’s specific national interest in the issue. The statement avoids needless controversy, while sending a positive signal to India’s friends in south-east Asia and asserting its vital interest in maintaining freedom of navigation and overflight rights under UNCLOS.

Finally, we must take note of the Pakistani reaction. China’s reliable ‘subaltern’ ally has predictably extended support to Beijing. A foreign ministry spokesperson in Islamabad stated that “disputes over the South China Sea should be peacefully resolved, through consultations and negotiations by states directly concerned.” (It is interesting to compare this with Pakistan’s traditional position on the Kashmir issue.) The spokesperson went on to add that Pakistan “respects China’s statement of optional exception” in the case before the tribunal, thus joining China in denying the validity of the award.

Chandrashekhar Dasgupta is a retired member of the Indian Foreign Service.