A year ago today, an arbitral tribunal formed pursuant to the United Nations Convention for the Law of the Sea issued a blockbuster award finding much of China’s conduct in the South China Sea in violation of international law. As I detailed that day on this blog and elsewhere, the Philippines won about as big a legal victory as it could have expected. But as many of us also warned that day, a legal victory is not the same as an actual victory.
In fact, over the past year China has succeeded in transforming its legal defeat into a policy victory by maintaining its aggressive South China Sea policies while escaping sanction for its non-compliance. While the election of a new pro-China Philippines government is a key factor, much of the blame for China’s victory must also be placed on the Obama Administration.
First, some background. As Chris Mirasola and I have detailed in several posts here at Lawfare, China has only taken one meaningful act in the past year that brings it closer to compliance with the arbitral award. In November, China began allowing Philippine fisherman to fish near and around the Scarborough Shoal, which complied with the arbitral award’s recognition of those fishermen’s traditional fishing rights there. But on every other measure, China has continued to defy the award, especially by maintaining artificial islands on reefs which the tribunal ruled give China no maritime legal entitlements.