A dangerous illusion, a steady course

The international order is experiencing profound and accelerated change of a kind unseen in a century. Instability, uncertainty and insecurity are on the rise, while the outdated logic of bloc confrontation and zero-sum competition continues to exert a strong influence on global dynamics.

Among China's maritime issues in its neighborhood, the South China Sea remains the most complex. Although differences at sea are unlikely to be resolved quickly, the situation has, overall, remained peaceful and stable in recent years.

At the same time, certain claimant states persist in attempts to entrench their unlawful occupations, while extra-regional powers have quickened the pace of their intervention. The pattern of some parties seeking opportunistic advantage and external actors exploiting the situation to advance their own strategic interests has grown more pronounced.

A decade ago, a so-called "South China Sea arbitration award" was rendered following unilateral initiation by the Philippines and behind-the-scenes orchestration by the United States, with the ad hoc tribunal exceeding its jurisdiction.

The "award" has produced no diminution of China's sovereignty or rights in the South China Sea. Its longer-term influence, however, generated through policy statements by certain states, academic discussion and media amplification, cannot be ignored.

The illusion of "legitimacy" created by the interplay of political, academic and media narratives has distorted external understanding of the historical realities in the South China Sea, skewed debates on international maritime rules, and imposed a form of soft constraint on China's efforts to uphold its territorial sovereignty and maritime rights while participating in and helping shape maritime order.

Contrary to predictions of "turbulent waves" that accompanied the so-called award's release, the South China Sea has remained generally stable and manageable over the past ten years. This contrast itself merits reflection: in an era of accelerating global transformation, where does the peace and stability of the South China Sea come from, and how should it be carefully preserved?

To understand the foundations of this stability, one must first see the "award" for what it is. Far from settling disputes, it has added fuel to the fire. The core of the relevant disputes between China and the Philippines is a territorial issue arising from the Philippines' unlawful occupation of certain features of China's Nansha Islands. Since the 1960s and 1970s, several states have successively occupied more than forty features belonging to China's Nansha Islands.

The essence of the China–Philippines disputes is therefore one of territory. With the establishment of the exclusive economic zone and continental shelf regimes, overlapping claims to maritime delimitation have also emerged in certain areas. Disputes of this nature must be addressed in accordance with the fundamental international law principle that "the land dominates the sea."

The tribunal, however, proceeded in the opposite direction. It presupposed its conclusions, reversed cause and effect, and, under the guise of interpreting and applying the Convention to clarify maritime rights, in fact denied China's territorial sovereignty and sought to entrench the Philippines' unlawful occupations. There was no fairness or justice in its approach.

The so-called award is not only substantively flawed; it has also caused real damage to the international rule of law. At key stages of the proceedings, the hand of extra-regional influence was clearly visible. The US Department of State issued a report that served as a ready-made template for the tribunal's treatment of the nine-dash line and historic rights. The Japanese president of the International Tribunal for the Law of the Sea, who oversaw the tribunal's composition, simultaneously held a senior advisory role in the Japanese government on security legislation and played a part in coordinating Japan–US policy concerning the Diaoyu Islands.

Throughout the case, the United States and Japan issued official statements in various international forums that carried clear policy preferences and political signalling. The "award" that the Philippines obtained, with the United States directing and Japan assisting, stands as a striking irony for international rule of law.

Faced with the impact of this arbitral episode, China has taken multiple measures to firmly uphold its territorial sovereignty and maritime rights. At the same time, with an eye to the broader picture of regional peace and stability, it has consistently advocated resolving disputes through negotiation and consultation, easing tensions through development and cooperation, and managing crises through rules and mechanisms.

One of the most important reasons the South China Sea has remained generally stable and manageable over the past decade has been the comprehensive, complete and effective implementation of the Declaration on the Conduct of Parties in the South China Sea (DOC). Where parties have performed well under the DOC framework, differences and frictions have been fewer and cooperation greater.

Many observers have underestimated the value of this political document, focusing instead on the prospect of a legally binding Code of Conduct, as if only the latter could serve as a panacea. This represents a significant misunderstanding.

Another common misconception is the tendency, found both in parts of the international community and among some legal scholars, to treat the UN Convention on the Law of the Sea as the sole relevant framework. Handling the South China Sea issue requires a complete international legal perspective. It cannot be detached from the foundational instruments that shaped the post-war international order — the Cairo Declaration, the Potsdam Proclamation and the UN Charter — nor from the general rules and customary international law applicable to territorial disputes.

While the Convention is the cornerstone of modern law of the sea and enjoys unquestioned authority and universality, it itself provides that "matters not regulated by this Convention continue to be governed by the rules and principles of general international law." Framing the South China Sea issue narrowly within the Convention alone is neither consistent with legal reality nor helpful to resolving the problems at hand.

A third misconception lies in the blind faith in and repeated promotion of the "arbitral award". In recent years, certain regional and extra-regional states have periodically placed the "award" under the spotlight, portraying it as "international law applicable to the South China Sea" in an attempt to negate China's legitimate rights and claims. Such actions may stem from uncritical faith in compulsory third-party dispute settlement or from a selective reading of the law of the sea.

More fundamentally, however, they reflect strategic miscalculations by some claimant states seeking to solidify the "award" and strengthen unilateral positions, as well as the deliberate efforts of certain external actors to stir up the situation and drive a wedge between China and ASEAN countries. The "award" has rendered an already intricate issue even more difficult to resolve, undermined the balance and fairness of the Convention, and shaken the confidence of States Parties in the dispute settlement mechanism.

The South China Sea issue possesses both political and legal dimensions, with multiple factors intertwined. Any eventual solution — whether interim or final — is likely to consist of a series of political arrangements or the refinement of combined political and legal measures.

In exploring possible solutions, the parties concerned must move beyond any fixation on the supposed "effectiveness" of the "arbitral award". They should work with China to preserve the hard-won peace and stability in the South China Sea and pursue a steady, long-term resolution.

China and ASEAN countries are accelerating consultations on a Code of Conduct in the South China Sea. The core function of the code is to manage crises and promote practical cooperation in low-sensitivity areas before the territorial and maritime delimitation issues are resolved.

Parties should approach the code with both positive expectations and realistic preparation. As the successor to and development of the DOC, the code will play a constructive role, but it is not a cure-all.

Friction at sea may still occur, and differences over the interpretation and application of its provisions may arise. As long as mechanisms and channels for dialogue exist, contradictions can be kept under control. On the question of binding force, China's position remains open: whether the instrument carries binding force depends on the consensus of the parties.

Accusations that China opposes a binding code are themselves based on a misunderstanding. Ultimately, a proper resolution of the South China Sea issue will take time. Throughout this process, all parties should demonstrate restraint and patience and work together to preserve the precious peace and stability of these waters.

At a time when global transformation is accelerating and turbulence is increasing worldwide, the contrast with other sea lanes offers a timely reminder of the value of stability in the South China Sea. Recent disruptions to navigation in the Strait of Hormuz and their ripple effects have naturally prompted comparisons with another vital maritime passage.

The two situations differ in nature: navigation safety and freedom in the South China Sea have been consistently assured over the years and have never been materially affected by the disputes.

Nevertheless, shifts in the external environment can subtly influence the willingness of regional states to cooperate. The turbulence in the Strait of Hormuz makes the peace and stability achieved in the South China Sea all the more precious. This stability is the result of years of joint efforts by regional countries; it has never been a given.

Only through continued mechanism-building and dialogue can parties regulate their conduct, build mutual trust, and move steadily toward turning the South China Sea into a sea of peace, friendship and cooperation.

The author is the director of the Center for International and Regional Studies, National Institute for South China Sea Studies.

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