Is There Convergence on the South China Sea Arbitration Award?Legal Experts Weigh In

Left to right, from the top row: Professor Donald R. Rothwell FAAL (Australian National University), Justice Antonio T. Carpio, Ms. Vo Ngoc Diep (Diplomatic Academy of Vietnam), Mr. Gregory B. Poling (Center for Strategic and International Studies), Dr. iur. Damos Dumoli Agusman (Indonesian Ministry of Foreign Affairs), and Director-General Jose Maria A. Cariño (Foreign Service Institute).

There is a certain level of convergence of views among claimant and user states on the final Award in the South China Sea Arbitration, legal experts within and outside the region acknowledged during the online Mangrove Forum organized by the Foreign Service Institute (FSI) on 21 January 2021. The Award, issued on 12 July 2016, favored the Philippines.

The Mangrove Forum on International Relations: “Convergence on the Arbitration Award? Untangling Recent Developments in the South China Sea” discussed the actions and statements of claimant and user states in the South China Sea in 2020 and assessed the significance of these developments. The forum was in partnership with the US Embassy in the Philippines.

Justice Antonio Carpio, former Senior Associate Justice of the Supreme Court of the Philippines and the forum’s main speaker, emphasized that the root cause of the territorial and maritime disputes in the South China Sea is China’s “nine-dash line” claim. The unanimous Award—issued by an arbitral tribunal constituted under Annex VII to the UN Convention on the Law of the Sea (UNCLOS)—concluded that there was no legal basis for China to claim historic rights to resources in the sea areas falling within the “nine-dash line.”

“The Award is accepted by all disputant states except China. Outside of the disputant states, the Award is accepted by all other coastal and naval powers with interests in the South China Sea,” Justice Carpio pointed out.

Since the Award, several states—including Vietnam, Malaysia, Indonesia, the United States, Australia, the United Kingdom, France, Germany, and Japan—have made statements that prejudice China’s “nine-dash line” claim. These are embodied in their notes verbales submitted to the UN in relation to China’s invocation of the “nine-dash line,” which was to object to Malaysia’s submission for an extended continental shelf in the South China Sea in December 2019.

According to Justice Carpio, the periodic conduct of freedom of navigation operations (FONOPs) by extraregional naval powers represents the most robust enforcement of the Award because it affirms the exclusive economic zone of the Philippines in the West Philippine Sea.

The forum also featured three discussants from Vietnam, Indonesia, and Australia. Ms. Vo Ngoc Diep, Research Fellow at the East Sea (South China Sea) Institute at the Diplomatic Academy of Vietnam, provided an overview of Vietnam’s legal position and claims in the South China Sea. Vietnam opposes and rejects the Chinese claim to historic rights based on the “nine-dash line” and all other claims that are incompatible with UNCLOS. Ms. Diep observed that over the years, Vietnam and other states have become more willing to defend their maritime rights provided by UNCLOS.

Dr. iur. Damos Agusman, Director-General for Legal Affairs and International Treaties at the Indonesian Ministry of Foreign Affairs, cautioned that the overemphasis of the political ramifications of the recent exchanges of notes verbales at the UN among concerned states could eclipse the legal significance of the process. Nevertheless, the outcome of these exchanges could be particularly useful in the ongoing negotiation on a Code of Conduct in the South China Sea (COC) because ASEAN member states have now a clearer understanding of the positions of the claimant and user states.

Professor Donald Rothwell, Fellow of the Australian Academy of Law and Professor of Law at the Australian National University, remarked that Australia does not take sides in the territorial and maritime disputes in the South China Sea. Nevertheless, Australia supports the Award and rejects China’s claims that are inconsistent with UNCLOS. The exchanges of diplomatic notes at the UN reveal that the positions of several states are becoming more consistent with the language of UNCLOS, which could suggest a convergence of views on a number of legal points in the South China Sea disputes.

Responding to questions raised during the Open Forum, the speakers were optimistic that President Joseph Biden Jr.’s administration would sustain the momentum of US FONOPs to resist China’s excessive maritime claims. They were also confident that the US would continue to support ASEAN centrality to ensure that the organization would lead in shaping the regional security agenda. Lastly, the speakers hoped that the new administration would prioritize making the US a state party to UNCLOS.

Mr. Gregory Poling, Director of the Asia Maritime Transparency Initiative at the Center for Strategic and International Studies, moderated the Open Forum.

The event was attended by officers and staff of the Department of Foreign Affairs in the Home Office and in Foreign Service Posts, officials from Congress and other government agencies, members of the diplomatic corps, academicians, representatives from think tanks, and members of the media.