Conference Report: Five years after the July 12, 2016 PCA Arbitration on the South China Sea - Negotiations and New Bullying

31. August 2021, von AAI Webmaster

Foto: unsplash

A report on the conference "Five years after the July 12, 2016 PCA Arbitration on the South China Sea: Negotiations and New Bullying", organised at the Department of Southeast Asian Languages and Cultures, University of Hamburg, on July 9, 2021.

Participants:
Prof. Dr. Suzette Suarez, City University of Applied Sciences, Bremen
Dr. Takashi Hosoda, Charles University Prague
Dr. Rodion Ebbighausen, Deutsche Welle, Bonn
Dr. Gerhard Will, retired, formerly Stiftung Wissenschaft und Politik, Berlin

Presentation:
Prof. Dr. Thomas Engelbert, University of Hamburg

On July 12, 2016, the Permanent Court of Arbitration (PCA) in The Hague ruled the case Philippines versus the People’s Republic China (PRC) concerning the South China Sea (SCS). The PCA invalidated Beijing’s claim to virtually the entire area, where altogether six countries (the PRC, Taiwan, Vietnam, the Philippines, Indonesia, and Brunei) claim territories. The court ruled in favour of seven of the Philippine submissions, especially rejecting the Nine-Dash-Line of China’s maritime borders and the so-called historic rights on which this line is based. The PRC rejected the arbitration result and questioned the responsibility of the PCA, although the proceedings and the award were based on the UN Convention on the Law of the Seas (UNCLOS) which the PRC has signed. China continued its construction activities of artificial islands, although that had been also judged by the PCA as an infraction on UNCLOS. On November 25, 2017, political scientists, legal experts and historians from Germany, Britain, Russia and Norway met at the University of Hamburg to discuss the situation in the South China Sea one year after the PCA award. In 2019, a book was published, which comprised the updated conference papers.

The web-conference on July 9, 2021 under the headline “Five years after the July 12, 2016 PCA award on the South China Sea: Negotiations and New Bullying” can be regarded as a follow-up event to this 2017 conference. Four authors presented their new findings: Professor Suzette V. Suarez (City University of Applied Sciences, Bremen), Dr. Takashi Hosoda (Charles University, Prague), Dr. Rodion Ebbighausen (Deutsche Welle, Bonn) and Dr. Gerhard Will (retired, formerly Stiftung Wissenschaft und Politik, Berlin). The summaries of their presentations can be found as pdf documents on the website of the Department of Southeast Asian Languages and Cultures, University of Hamburg. The online presentations are archived and can be assessed in the folder “Lecture2Go” of the University of Hamburg. During the presentations and in the subsequent discussion of the papers, several interesting new thoughts and ideas were brought up and discussed.

Suzette Suarez mentioned the impact of the PCA award, especially on the extended continental shelf legal regime. She stressed, that the PCA award is not only important as a ruling a litigant according to UNCLOS, but it is also playing a role in the further development and strengthening of international law. Especially the verdict, that the biggest features within the South China Sea (the so-called Spratly Islands) legally are rocks, and not islands, has far-reaching legal consequences. Therefore, from a legal point of view, there are no boundary
litigants in the SCS disputes and UNCLOS can be fully applied.

The PCA award has also consequences for the drawing of the outer limits of the extended continental shelf in the South China Sea. Article 76 of UNCLOS stipulates, that coastal states may establish the outer limits of their continental shelf beyond the 200 nautical miles in case there is topographical or geological continuity, provided the Commission on the Limits of the Continental Shelf (CLCS) issues a recommendation approving the submission. With other words: coastal states have the duty to submit these outer limits to CLCS. (It is, according to UNCLOS, a technical body made up by 21 geologists, geophysicists and hydrologists, which meets two times a year at the UN Headquarters in New York, and gives mandatory recommendations to the coastal states.) China, in its public communications, has silently dropped the Nine-Dash-Line and now declared the rocks as island groups or archipelagos (qundao). However, China is not an archipelagic state, as the PCA award has unequivocally confirmed.

Takashi Hosoda emphasized, that the PRC continued their three warfare strategies and grey zone tactics in both the SCS and the East China Sea (ECS). Especially the massive military build-up should be stressed, which is more than just seeking for a regional, but for a global dominance. The PRC denies other countries economic activities in areas considered as “its own” territory. It uses a more confrontational approach with regard to both the SCS and the ECS, especially to satisfy the goals of nationalist propaganda for a domestic audience.

Rodion Ebbighausen stressed, that after Trump, there is a new-found Western solidarity, especially between the US and the EU. However, the EU and its most important member states are reluctant to confront the PRC. The EU wants to “have the cake and eat it too”. It wants to work with both sides and is keen not to been drawn into an open conflict between the US and the PRC. The conflict in the SCS is a convincing example to demonstrate that approach. There are indeed similarities between the EU attitude and those of its member states (especially France, Germany and the Netherlands), a common denominator: the legal approach. It emphasizes the 2016 PCA ruling and UNCLOS as the only legal sources to solve the conflict.

Gerhard Will showed us that China’s different internal and external problems are related to each other. The PRC is not as strong as it wants to appear. Under the rule of Secretary General Hu Yintao, China’s propaganda presented the country’s development as a “peaceful rise”, not threatening anyone. Overconfidence and hybris have risen sharply under Xi Jinping, who preferred to present China’s rise as a “renaissance” in comparison to lost imperial glory, which once had been destroyed by Western colonial powers. Gerhard Will showed the striking difference between imperial China of the 19th century and the PRC’s place in an interdependent world of today. Chinas leaders sharply criticize the international order created by Western powers, and in the same time they gladly accept the benefits of it and do not present any new initiative or alternative. Belligerent rhetoric, overconfidence, arrogance and economic or military pressure might lead to a vicious circle – a common front built up against the PRC.

In the questions and answers session following the presentations, the pending process of the baselines’ delimitation was explained, and the reasons why China has changed the administrative units in the South China Sea. Furthermore, participants asked how the conflict could be solved, which led the participants to give, each from his or her own area of expertise, thoughtful and nuanced answers. Another question was about the position and attitude of the Republic of China (Taiwan) towards this conflict.