Wu Shicun: South China Sea Arbitration Ruling Sets a Bad Precedent
Ten years after an international arbitral tribunal issued its award in the South China Sea case brought by the Philippines, the ruling remains one of the most contested issues in the region. On June 12, fourteen countries published a joint statement declaring that the award, rendered by a tribunal in whose proceedings China did not participate, is final. Chinese Mofa published a declaration, saying the award has intensified regional tensions and provided a pretext for external forces to intervene in the South China Sea issue and a block to peace and stability in the region.
China's position can be summarized as “non-acceptance, non-participation, non-recognition, and non-implementation.” The rationale is that the dispute is essentially about territorial sovereignty, which falls outside the scope of the UN Convention on the Law of the Sea (UNCLOS) and therefore beyond the tribunal’s jurisdiction.
For today’s episode, I want to present the latest remarks from Professor Wu Shicun (吴士存) at the South China Sea Security Roundtable Dialogue. Wu is the founding president of the National Institute for South China Sea Studies. From 1993 to 2000, he took part in the China–Vietnam negotiations on the delimitation of the Beibu Gulf (Gulf of Tonkin) as a member of the Chinese government delegation and its expert group. He has also studied or pursued advanced training at the Johns Hopkins School of Advanced International Studies (SAIS), the Asia-Pacific Center for Security Studies, and Harvard University's Kennedy School of Government. He is one of China's most authoritative experts on the South China Sea issue.
In his latest commentary, Wu argues that the award lacks legal validity, has been increasingly instrumentalized for geopolitical ends, and constitutes an obstacle rather than a pathway to peace and stability in the South China Sea. As Manila marks the anniversary with renewed diplomatic and academic activity around the ruling, the article contends that the next decade will see continued contestation over its legacy and meaning.
Thanks to Professor Wu's kind authorization, I can present the English version in my newsletter.
The “South China Sea Arbitration Ruling” Is a “Bad Precedent” That Violates International Law
Ten years after the illegal ruling in the “South China Sea arbitration case,” unilaterally initiated by the Philippines, the task of refuting and detoxifying it remains arduous.
A few days ago, Manila hosted a series of events related to the illegal ruling. On the surface, these were held in the name of think tanks or academic conferences, but in substance, they were led by the Philippine Department of National Defense, Department of Foreign Affairs, or national security agencies. Looking at the nationalities of the participants, virtually none were absent among the countries supposedly “like-minded” with the Philippines, countries with maritime disputes with China, and countries seeking to exploit the South China Sea for geopolitical gain. At these meetings, certain Philippine politicians and “scholars” with vested interests tied to the Philippines proclaimed that their goal for the next decade on the “ruling” would be to translate the so-called “legal achievement” into actual strategic advantage through coordination among think tanks, the Philippine government, the military, and civil society. Philippine Defense Secretary Teodoro, who has been sanctioned by China, went so far as to declare nakedly that legal claims must be closely integrated with military buildup to serve an active defense posture and a narrative of national unity.
Clearly, this illegal and invalid ruling has been further distorted. It has become the bond and glue for interest-binding between the Philippines and certain countries seeking to manufacture a “China threat in the South China Sea” narrative. Japan and a few other countries that, like the Philippines, wish to package and “launder” illegal gains through illegal means are also taking part. It is fair to say that the countries trying to get a share of the illegal ruling have formed a de facto “interest group” and an interlocking “industrial chain.”
Precisely for this reason, while intensifying our legal refutation and exposure of the ruling’s fallacies, we must also take a multi-pronged approach: sever the interest chain built on this illegal ruling and reveal to the world the underlying logic of the “interest group” formed around it.
Looking back at the ten years since the illegal ruling was issued, the Philippines and the United States and other Western countries have sung in chorus, fabricating absurd logic and false narratives such as “the ruling is international law” and “failure to implement the ruling is a violation of international law,” and repeatedly hyping them for fear that the “ruling” would be forgotten or even “buried” by the international community. For ten years, this illegal ruling has been like a terminally ill patient, barely kept alive by life-support systems in the ICU. Judging from the Philippines’ current frequent provocations against China’s rights and claims in the South China Sea and its actions undermining regional peace and stability, the current Philippine government is intensifying its use of the “ruling” to change the status quo, entrench illegal gains, and attempt to expand the scope of its infringements. Evidently, the illegal ruling has had an extremely negative impact on political mutual trust and overall relations between China and the Philippines. Beyond the Philippines, a few other parties to South China Sea disputes have also occasionally cited or invoked the “ruling” as a basis for their claims and unilateral encroachments. Some countries outside the region have lavished praise on the illegal ruling, attempting to use it to pressure China into “complying with” or “implementing” it.
The fact that the illegal ruling has caused instability and localized turbulence in the South China Sea shows that it has not brought — and can never bring — peace and tranquility to the region. On the contrary, it has become a “troublemaker” and a “source of turmoil” for peace and stability in the South China Sea, a “spoiler” of bilateral relations between China and other claimants on South China Sea issues, and the greatest obstacle and “stumbling block” to the full and effective implementation of the Declaration on the Conduct of Parties in the South China Sea and the orderly advancement of consultations on a Code of Conduct.
From the above analysis, we can draw a conclusion: unless the illegal ruling is laid to rest, there will never be peace in the South China Sea. Unless we say a firm and thorough “no” to the illegal ruling, maritime cooperation in the South China Sea will remain merely verbal and on paper. Unless the illegal ruling disappears from public discourse on the South China Sea, China will from time to time be labeled by ill-intentioned countries or forces as “undermining the rules-based international order.” And unless the illegal ruling is uprooted entirely, other countries may follow suit, using operations that violate international law as cover and sophistry when committing infringements, provocations, and harm to public interests in the South China Sea.
At the same time, it remains essential to expose, at the root, the illegal nature of the “South China Sea arbitration tribunal” on the basis of international law, international practice, and historical facts, and to refute the political conspiracy behind it and its absurd claims of “jurisdiction.” Otherwise, some countries in the international community that do not know the truth, or observers of the South China Sea issue, may be misled by false narratives such as “the ruling is international law” or “the ruling is part of international law,” which over time could solidify into part of their perception of the South China Sea.
Looking back over the past decade, one heartening reality is that although the illegal ruling attracted some international attention when it was first issued in July 2016, its content has received no response at the level of state practice from other countries, no recognition or adherence from international judicial bodies, and no endorsement from international academia. Some countries that support the illegal ruling know in their hearts that it is illegal and invalid; institutions such as the International Court of Justice have collectively avoided substantive discussion of the “ruling” in relevant cases; and upright and conscientious authoritative international scholars have leveled sharp criticism at the “ruling” from multiple angles, including textual interpretation, historical examination, and logical consistency.
In short, the illegal ruling in the “South China Sea arbitration case” will not produce any substantive impact at the level of international law of the sea; it is primarily a tool used by certain countries or forces to stir up trouble in the South China Sea. In the foreseeable future, the “ruling” will increasingly be seen as an “isolated incident” within a specific geopolitical context, rather than a so-called “precedent” in the international law of the sea system. In any case, over the next ten years or longer, we will not relax our vigilance against any claims or actions based on this illegal ruling, and we will sternly refute, lawfully defend our rights against, and resolutely counter any words or deeds that hype it.