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  September 1st, 2016 | Written by

South China Sea Ruling: Who’s Taking Sides?

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  • Which countries recognize the South China Sea decision as legally binding?
  • International pressure is the UN court’s only enforcement mechanism.
  • An estimated $5 trillion in cargo passes through the South China Sea every year by ship.

China appears to have lost support for its legal positions in the South China Sea dispute since an arbitration panel in the Hague ruled in favor of the Philippines in a case brought against China over claims in the South China Sea on July 12.

That’s the main conclusion of a recently released report from the Asia Maritime Transparency Initiative (AMTI), a project of the Washington think tank Center for Strategic and International Studies (CSIS).

China claims exclusive territorial rights over most of the area as defined by the so-called nine-dash line that the Chinese draw on maps to delineate their claims.

The Permanent Court of Arbitration in The Hague said there was no legal basis for China to claim historic rights to resources within the areas claimed.

China boycotted the hearings and, within hours of the verdict, announced that its rejection of the court’s decision. This despite the fact that the UN Convention on the Law of the Sea (UNCLOS), which China has signed, provides for a compulsory dispute settlement process.

Which countries recognize the decision as legally binding on both parties? The answer, notes the AMTI report, “will determine its ultimate value, as international pressure is the court’s only enforcement mechanism.”

The dispute includes implications for freedom of navigation and overflight in the region. An estimated $5 trillion in cargo passes through the South China Sea every year by ship.

Brunei, Malaysia, the Philippines, Taiwan, and Vietnam have all also articulated claims to parts of the area in dispute.

The dispute at one point led to a standoff between Philippine marines and Chinese naval and law enforcement vessels. A Chinese blockade prevented the resupply of the marines stationed aboard the BRP Sierra Madre at Second Thomas Shoal.

Last month, a Vietnamese freighter sank after a collision with a Chinese ship, although no reports of foul play have been associated with that incident.

To determine which countries support The Hague ruling, AMTI investigated publicly available official statements.

Even before the ruling was ever publicized, Beijing embarked on a diplomatic effort to convince governments to support its position that the tribunal was illegitimate and lacked jurisdiction in the case. China’s Ministry of Foreign Affairs claimed that more than 60 countries supported its position, although AMTI could only find 31 countries that adopted that position on the record. Forty countries said that the panel’s ruling would be legally binding and called on China and the Philippines to respect it.

In the month since the ruling was issued, AMTI identified seven countries that have publicly called for the award to be respected, 33 that have issued generally positive statements about the verdict, nine that are seemingly neutral or ambiguous on the subject, and six that have publicly rejected the ruling.

AMTI also identified a few differences pre- and post-ruling.

The 28 members of the European Union, and several non-members, endorsed binding arbitration under UNCLOS in a joint statement in March about the South China Sea. But after the verdict was rendered, those same countries failed to endorse the final ruling as legally binding. “These,” the AMTI report noted, “included Germany, France, Italy, and the United Kingdom, all of which signed onto a statement at the May G-7 meeting in Japan that had called on China to abide by the forthcoming ruling.”

Montenegro, a signatory to the March statement actually reversed its after July 12 award and sided with China in rejecting the ruling.

India, Malaysia, Myanmar, and South Korea—all of which remained silent before the ruling—have since issued positive statements regarding the award, without explicitly calling on China to submit to the court’s judgment.

Taiwan, on the other hand, rejected the ruling on the grounds that the court refused to consider Itu Aba, Taipei’s only occupied feature in the Spratly Islands, legally an island.

Most of the support that China previously claimed has not been seen since the ruling. The 22 members of the Arab League issued statements which mentioned the right of countries to exempt certain types of disputes from compulsory settlement under UNCLOS article 298, backing China’s claim of lack of jurisdiction. But those statements did not translate into public opposition to the recent judgment.

The AMTI report also found a strong correlation between the level of support shown for the South China Sea arbitration, and a country’s level of corruption and strength of governance/rule of law, as measured by several international indexes.

“Generally,” the report concluded, “countries with greater respect for rule of law at home and more insulated from Chinese economic coercion have been more willing to speak in defense of the arbitral tribunal and international law more broadly.”