Proposed China-USA New Normal Relations and the UNCLOS Arbitration Award

With China’s new economic status as an economic superpower, China proposed new normal relations with the United States to the Obama Administration, based on the following principles: 1) recognition of each other’s core interests; 2) no conflicts; 3) no threats or intimidation; and 4) mutual respect.  According to Ambassador Wu Hailong, President of the Chinese People’s Institute of Foreign Affairs, the United States rejected the fourth principle

While it is up to China to determine what are its core interests, it is for the United States to decide whether to accept and respect China’s declaration of its core interests.  It is clear that the United States does not accept China’s claim of sovereignty or of sovereign rights over such a vast area of the South China Sea covered by the nine-dash-line.  The United States has rejected China’s claim and protested China’s actions in allegedly converting seven artificial islands in the South China Sea into military bases.

In 2012, the Obama Administration announced the United States pivot to Asia, subsequently refined as a policy of rebalancing in the Asia Pacific region.  China’s commentators have perceived this as a policy of containment of China and maintaining US hegemony in the region.  They state that this policy undermines China’s security and is the principal cause of regional instability.

The Obama Administration justified its policy of rebalancing in the Asia Pacific region, on the need to be prepared in case of the emergence of an aggressive and revisionist China.  Aside from the dispute with respect to the nature of the structures in the artificial islands, the United States has accused China of bullying its smaller neighbors.

The United States explained rebalancing as a multi-dimensional strategy that harnesses every element of its national power and contains a very broad agenda that includes not only security but also investment, trade, development, tourism, and other forms of cultural exchange.

The Trump Administration has not yet defined clearly what its policy will be with respect to China and ASEAN and the rest of East Asia.  President Trump has abandoned the Trans Pacific Partnership Agreement (TPPA), which excludes China, and this has given rise to the perception that China may become the dominant economic power in our region.  On the other hand, Trump has also announced that the United States would rebuild its military structure, including making the US Navy even stronger.  This seems to indicate that the United States intends to remain as the dominant military power in our region.

President Duterte has been cautious in playing his hand in the rivalry between the United States and China, having entered into office while awaiting the results of the US presidential election. While overtly tilting towards China, he has not cut off the Philippines’ defense ties with the United States.  

The Duterte Administration’s position is partly based on the consideration that the Mutual Defense Treaty between the Philippines and the United States does not cover the defense of the Philippines’ Exclusive Economic Zone and Continental Shelf, or of Scarborough Shoal and of Kalayaan Islands in the Spratlys.   

The bilateral talks between the Philippines and China have succeeded in lowering tensions in the South China Sea.   Filipino fishermen can engage once again in artisanal fishing at Scarborough Shoal.  The two countries have announced that China will support various infrastructural projects in the Philippines which will involve some billions of US dollars.

Recently, however, there has been renewed controversy about the perceived militarization of artificial islands in the South China Sea.  Foreign Secretary Perfecto Yasay, Jr. revealed that the Philippines had delivered protest notes to China.  He also said that if China should convert Scarborough Shoal into a military base, this would be a game changer in our bilateral relations with China.

One of the causes, which compelled the Philippines to request for UNCLOS arbitration in its dispute with China, was the continued occupation by China of Mischief Reef, which is a low tide elevation within the Philippines Exclusive Economic Zone (EEZ) and forms part of our Continental shelf.  China occupied Mischief Reef in 1995 after the Philippine Senate voted to remove the US bases from Clark and Subic.   China first built a platform on Mischief Reef explaining, after the Philippines protested, that this was a shelter for fishermen regardless of nationality. Thereafter, China converted Mischief Reef into an artificial island despite continued Philippine protests.

The Philippines also complained in its Petition for Arbitration that China has unlawfully interfered with the enjoyment and exercise of the sovereign rights of the Philippines with respect to the non-living resources in the Reed Bank, which is within its EEZ and Continental Shelf.

When China occupied Scarborough Shoal in 2012 in view of its overwhelming military superiority over the Philippines, which has the weakest military in the region, the Philippines’ obvious recourse was to invoke the Rule of Law.

Under the UN Convention on the Law of the Sea, the Philippines is entitled to a 200 mile Exclusive Economic Zone and Continental Shelf.  China, on the other hand, cannot claim to have “historic rights” within the area encompassed by the 9-dash-line, which encroaches on two-thirds of the Philippines’ EEZ and Continental Shelf in the South China Sea.  

Prior to the UN Convention on the Law of the Sea, international law did not accept “assertions of historic rights over such a vast area” as claimed by China under its 9-dash-line.  The sea was subject to only two principles: 1) the principle of freedom of the seas, and 2) the principle of control over a limited area by the coastal state.

In any event, the UNCLOS Arbitral Award ruled that any assertion by China that it may have had historic rights to the living and non-living resources within the 9-dash-line “were superseded, as a matter of law, by the limits of the maritime zones provided for in the Convention.”

The Arbitration Award has given the Philippines the needed leverage in its talks on bilateral disputes with its giant neighbor.  It has placed China on the defensive and given the Philippines soft power to protect its sovereign rights to its EEZ and Continental Shelf.

The Arbitration Tribunal had no jurisdiction to decide issues relating to military matters. The UNCLOS Arbitration also had nothing to do with the issue of sovereignty over the Spratly Islands but it had every thing to do with the defense of our sovereign rights over our 200 mile EEZ and Continental Shelf in the South China Sea.  The issue of the alleged militarization of the artificial islands would now have to be resolved by ASEAN with China in the negotiations for a Code of Conduct in the South China Sea. 

On this issue, the ASEAN Foreign Ministers declared in a Joint Communiqué issued at their annual meeting in Vientiane in July 2016, after taking note of the UNCLOS arbitration ruling, that:  “We emphasized the importance of non-militarization and self-restraint in the conduct of all activities, including land reclamation that could further complicate the situation and escalate tensions in the South China Sea.”

This perceived militarization of the artificial islands is the main cause of tension in the South China Sea, coupled with China’s claim of sovereign rights over the vast area covered by the 9-dash-line.  Absent these, there would be a more peaceful environment in the South China Sea. The issue of sovereignty over the Spratly Islands is another matter but the United States has stated that it does not take the side of any claimant on this issue.