5 years after the PCA judgment, and the war of diplomatic notes

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Since the end of 2019, there have been more than 30 diplomatic notes, letters and statements from 13 countries inside and outside the East Sea region referring to positions and views on a number legal issues in the East Sea.

2021 marks five years after the decision of the Permanent Court of Arbitration (PCA).

At the opening session of the 75th UN General Assembly, the Philippine president said more countries supported the decision. It is the victory of reason over recklessness, of the law over the attempt to sow trouble, of friendship over ambition. It is – as it should be – the majesty of the law, he said.

A hearing at the Permanent Court of Arbitration (PCA) in The Hague (Netherlands) on the case of the Philippines v. China. Photo: PCA

By explaining that the Truong Sa (Spratlys) components do not have their own exclusive economic zone and continental shelf, the decision helped to minimize future boundary disputes as well as the extent of overlapping maritime zones. Countries surrounding the East Sea have the right to preserve their exclusive economic zones and continental shelves determined from land in accordance with the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the principle ” the land dominates the sea”.

China has launched an all-out and drastic campaign not to recognize, not be present and not implement the decision. The decision sparked Malaysia’s claim to the continental shelf boundary beyond 200 nautical miles to the north, which was submitted to the Commission on the Limits of the Continental Shelf (CLCS) in December 2019 and sparked a war of ratings. diplomacy between countries.

Difference of opinion

Since the end of 2019, there have been more than 30 diplomatic notes, letters and statements from 13 countries inside and outside the East Sea region referring to positions and views on a number of legal issues in the East Sea (internationally known as the South China Sea). This war of the notes divides the opinions of the countries.

China’s claims include: having historical rights since the 2nd century BC; the East Sea components all have territorial waters, exclusive economic zones, and continental shelves; it is customary to apply archipelagic baselines to the archipelagos off the coastal state; UNCLOS does not solve all the problems of the law of the sea, must be modified and the decision exceeded its competence, therefore it is invalid.

On the other hand, all countries inside and outside the region support the following: to recognize the unity and universality of UNCLOS by providing the necessary legal framework for all activities at sea and in the oceans. UNCLOS is the legal basis for the settlement of maritime disputes; The PCA’s decision dated June 12, 2016 is final and binding on the claimants – the Philippines and China; The characteristics of the Spratlys have a territorial water of only 12 nautical miles; freedom of navigation and overflight in the Eastern Sea must be respected;

Archipelagic baseline methods apply only to archipelagic states and cannot be illegally applied to offshore islands of coastal states; reclamation activities and all other forms of human alteration do not alter the legal status and classification of marine features under UNCLOS; claims related to the exercise of “historic rights” in the East Sea are incompatible with international law and UNCLOS.

The judgment and pressure from the international community has had some impact on China. This country reduced the mention of the line to 9 dashes and replaced it with a new illegal claim called “Four Sha”. Foreign Minister Wang Yi said all accusations that China claims all the seas inside the nine-dash line, such as internal waters and territorial waters, deliberately mislead China’s position. China.

China seeks to interpret UNCLOS in its favor or misinterpret international law, evade and ignore unfavorable provisions. This is not in keeping with the spirit of “accepting the whole package” to which UNCLOS asks Member States to commit.

The APC decision and the ratings war prove that the legal battle is getting fiercer and playing a key role in resolving disputes in the East Sea, in the fight for a rules-based order, and not on the rule of “might creates justice”.

Freedom of navigation and internationalization of the East Sea conflict

5 năm phán quyết Biển Đông và cuộc chiến công hàm

The German frigate Bayern entered the East Sea. Photo: VO

The United States and its allies continue to hold high the banner of respect for freedom of navigation as a fundamental element of the “Free and Open Indo-Pacific” strategy.

The frequency of US freedom of navigation operations in the East Sea has steadily increased. Under the Obama administration, the United States conducted only two freedom of navigation operations (FONOPs) in 2015 and 2016. Under Trump, FONOPs have increased steadily with four times in 2017, six times in 2018, eight times in 2019 and nine times in 2020. 2021, in the first month of taking office, the Biden administration conducted its first FONOP activity.

The United States Navy has deployed a total of four carrier battle groups in 2021: Carl Vinson, Theodore Roosevelt, Nimitz and Ronald Reagan. The amphibious ships USS Makin Island and USS Essex crossed the East Sea 11 times.

The United States has deployed B-52H and B-1B bombers 14 times to disputed waters and also sent 11 submarines to the East Sea. It was also the first year that a US nuclear submarine was damaged due to a foreign object collision in the East Sea.

2021 was also the first year that Germany, Britain, France and Australia deployed joint exercises in the region and conducted freedom of navigation operations in the East Sea.

In September 2021, the European Council adopted a resolution on the Indo-Pacific, identifying seven priority areas for action: sustainable and inclusive prosperity, green transformation, ocean governance, partnership and digital governance, connectivity, security and defence, and human security.

In terms of security and defence, the EU will promote an open and rules-based regional security architecture, including capacity building and increased naval deployment of EU countries in the region.

The G7 summit issued a joint statement on June 13, 2021. Unlike the group’s last meeting in 2018 in Canada, the joint statement opposed any unilateral action to change the status quo and contained many harsh criticisms to with regard to China.

The G7 discussed an infrastructure development plan for developing countries to compete with the Belt and Road Initiative, under the name “Build Back Better World” (B3W).

In the first six months of the year, Japan mentioned the East Sea 37 times, including 18 times about the Chinese Coast Guard Law, while in the last six months the Japan mentioned the East Sea about 15 times.

2021 was the year of the birth of two new strategic initiatives: the QUAD (Quadrilateral Security Dialogue) Summit was convened and the creation of AUKUS – an alliance of Australia, the United Kingdom and the United States , promising strong ties and deep commitment of East Sea countries in the name of protecting freedom of navigation and trade.

The situation in the East Sea in 2022

The situation in the East Sea will remain tense due to US-China competition. ASEAN needs the presence of US and allied military forces to provide security and a rules-based order, and it also needs the economic opportunities provided by China.

There will be more shuttle diplomacy efforts in the region. ASEAN countries are concerned about the emerging mechanisms but will try to retain their central role, remain neutral and wait for the United States to increase its investments in the region to balance its influence with China. The United States has clearly shown its attitude towards non-adherence to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and will soon have to find an appropriate economic cooperation mechanism with the countries of the region.

More and more countries, especially smaller ones, see international law as an effective tool to protect their legitimate interests. China continues to implement the “carrot and stick” policy, locating the East Sea through domestic law, exerting pressure and encouraging propaganda and exploitation, and finding ways to adjust the ‘UNCLOS to its advantage.

ASEAN should consider completing the negotiation of the Eastern Sea Code of Conduct (COC) in 2022 for immediate political goals for a substantial, effective and long-term COC. A weak and non-legally binding COC at this time would allow China to continue bullying its neighbors in their own waters and destabilizing peace and security in the East Sea.

A weak COC would help legitimize China’s position and dominance in the East Sea and with ASEAN, allowing China to continue to undermine the rules-based order and the fruits of the APC’s decision.

China will maintain the presence of its coastguards and militias in other countries’ waters. This could trigger an arms race in the region. Indonesia and Malaysia plan to modernize their navy and air force. The Philippines plans to upgrade Thitu and neighboring islands. AUKUS can also boost the development of submarines and electronic warfare tools, drones and MAVs in the region.

The East Sea is not only important for countries in the region, it also plays an indispensable role in the global supply chain. Countries are increasingly interested and want to be more present to protect their interests. There will be many fluid warships and investors from all over the world. There will be many political alliances in the region.

Countries should be vigilant and uphold the unity of UNCLOS as the single and most fundamental legal basis for the peaceful settlement of disputes in the East Sea, contributing to the stability and prosperity of the region.

Nguyen Hong Thao

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The decision of the Permanent Court of Arbitration (CPA) was an irrevocable part of history. It will serve as a “guide” for countries engaged in the struggle for an order based on rules and not on a “creative force of justice”.

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