In this webinar, Prof Clive Schofield and Prof Jay L Batongbacal covered the different ways China has continued to assert its territorial and maritime claims in defiance of the South China Sea Arbitration Award of 2016.
REGIONAL STRATEGIC AND POLITICAL STUDIES PROGRAMME WEBINAR
Monday, 27 June 2022 – As the sixth anniversary of the 2016 South China Sea Arbitration Award approaches, Professor Clive Schofield and Jay L Batongbacal presented an ISEAS webinar entitled “Mare Clausum with Chinese Characteristics: China’s Lawfare in the South China Sea” to discuss how China, the Philippines and other interested parties have responded to and behaved since the Award, with particular attention to China’s continued assertions of its excessive maritime claims in defiance of the ruling. Professor Clive Schofield is the Head of Research at the WMU-Sasakawa Global Ocean Institute at the World Maritime University (Sweden) and Professor with the Australian Centre for Ocean Resources and Security (ANCORS) at the University of Wollongong. Professor Jay Batongbacal is Professor of the University of the Philippines College of Law.
Professor Schofield described the Award as a “landmark decision” that offered “the first international judicial interpretation” of what constitutes a “Regime of Islands” under Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS). The Award also clarified the proper zones of jurisdiction that can be claimed under UNCLOS as well as establishing that “historic rights”-based maritime claims (such as China’s nine-dash-line) were incompatible with the Convention. Moreover, the Award established that none of the disputed high-tide features in the Spratly Islands are capable of generating extended maritime claims.
Schofield also characterised state responses to the Award as a “mixed bag”, with China outright in its rejection, while eight countries – Australia, Canada, Japan, New Zealand, the Philippines, UK, USA and Vietnam – called for the ruling to be “respected”. Nevertheless, the Award did change the legal dynamics in the SCS, as the littoral states have started to “base their maritime claims in the SCS on the Tribunal’s Award”. He highlighted, for instance, how the diplomatic responses to Malaysia’s December 2019 partial submission to the Commission on the Limits of the Continental Shelf (CLCS) generally acknowledged the “High Seas pocket” in the centre of the SCS that the Award identified.
However, the movement to entrench the validity of the Award and underscore the primacy of the Convention has been impeded by China’s legal and operational responses. Though Chinese behaviour in the immediate aftermath of the Award was relatively restrained, it has become increasingly assertive in recent years. China has unilaterally imposed annual fishing bans and bolstered its coast guard presence in the SCS, while establishing claims over the island groups in the South China Sea “as a whole” and asserting its claims over low-tide elevations and undersea features. Furthermore, Beijing has also raised the prospect of declaring straight baselines around all the island groups, contributing toward what Professor Schofield called as a “competing geo-legal vision of the SCS”.
The Award, if fully implemented, would also reduce the geographical scope of the maritime disputes in the SCS. While recognising the value of the Award (especially in clarifying certain legal ambiguities), Professor Schofield noted that the ruling is “only one interpretation” of the Convention, and it remains to be seen whether future tribunals will refer to the judgment. Moreover, he warned about the possibility that the Award may find itself “orphaned”, or cast aside, since it offers a “controversial” understanding of the “Regime of Islands” which runs contrary to contemporary state practices globally.
Professor Batongbacal described in comprehensive detail how the Philippines has been subjected to China’s escalating harassment in the SCS, especially in recent years. In particular, he highlighted three major incidents that occurred in the past three months. The first involved the Chinese Coast Guard’s (CCG) harassment of a Taiwanese research vessel that was commissioned by the Philippines to conduct a geophysical survey 60 nautical miles northwest of Luzon. The second incident occurred at Reed Bank, where a CCG vessel prevented two ships contracted by the Philippines from undertaking seismic surveys of the area – even though the Award established that Reed Bank lies on the Philippines’ continental shelf. Professor Batongbacal also described Beijing’s diplomatic pressure on the Philippines, to the extent that the latter introduced a new requirement that any maritime exploratory or development activity has to receive Cabinet-level approval before proceeding. The third incident involved two CCG ships, supported by China’s maritime militia vessels, interfering with a Philippines research vessel operating around Second Thomas Shoal (which the Award recognised to be on the Philippines’ continental shelf and EEZ). Professor Batongbacal also noted that Beijing and Manila have only met once since the November 2018 signing of a memorandum of understanding on joint oil and gas development in the SCS, mostly due to China’s insistence that Manila drop its stance that the resources in what it calls the West Philippine Sea are owned by the Philippines and that Philippine law applies in those waters.
Professor Batongbacal noted the expansion of China’s unilateral actions in the SCS against other littoral states, observing that Beijing relies on the CCG and its maritime militia to assert its expansive claims under the guise of “law enforcement”. Concerningly, these activities are being conducted closer to the coastlines of rival claimant states, often encroaching into their EEZs and continental shelves. Hence, not only is China ignoring the Award, but it is behaving in direct contravention of the ruling – to the extent that Beijing is now asserting claims outside the nine-dash-line.
In the Q&A session, the two speakers addressed various topics of interest to the 130-strong audience from Singapore and abroad. They discussed the Philippines’ possible approach to the SCS dispute under the incoming Marcos administration, the options available to Manila beyond filing diplomatic protests against China and the prospects for joint development ventures between China and the Philippines. They also fielded questions relating to the legal viability of China’s “Four Sha” claim, the implications of the 2016 Award on other states, and the possible implications of the October 2021 decision by the International Court of Justice on the maritime boundaries between Kenya and Somalia.