South China Sea

Tracking China’s Compliance with the South China Sea Arbitral Award: Scarborough Shoal Update

By Julian Ku, Chris Mirasola
Monday, October 31, 2016, 12:15 PM

Last month, we argued that despite China’s rhetoric, China had only clearly violated four out of 15 rulings contained in the July 12 U.N. Convention for the Law of the Sea arbitral award. China’s compliance with 10 of the remaining eleven rulings in the award remained uncertain. But we noted that our assessment could change based on new Chinese actions. Such an action occurred this week.

According to Philippines Defense Minister Delfin Lorenzana, “Since three days ago there are no longer Chinese ships, Coastguard or navy, in the Scarborough area.” Philippine fishermen have confirmed Lorenzana’s statement, telling reporters that they had entered the Scarborough Shoal area without interference. This was the first time fishermen had been permitted to fish at Scarborough Shoal (located about 141 miles from the Philippines’ island of Luzon) since 2012, when the Chinese Coast Guard began to block Philippine access to the Shoal.

Based on these developments, we have changed our assessment to find that China is now compliant with Submission 10, which found that the Philippines is entitled to “traditional fishing at Scarborough Shoal.” China’s refusal to give Filipino fishermen access to traditional fishing grounds at the Shoal explicitly violated this portion of the arbitral award. Now that Filipino fishermen have been allowed to operate (in practice) at Scarborough, China is compliant with this part of the award. This chart (also available below) offers a more detailed analysis of the rest of the tribunal’s rulings. You can also access our first post for a summary of China’s compliance, or lack thereof, with those rulings.

We do not suggest that China is advancing towards full compliance with the arbitral award. President Duterte’s recent pivot to Beijing notwithstanding, there are significant geopolitical and domestic obstacles to China coming to terms with the arbitral award that should not be underestimated. Sovereignty, for example, remains an issue; disagreements over wording that would imply Chinese ownership (on the one hand) or acknowledge the arbitral decision (on the other) derailed attempts to sign an official agreement on access to Scarborough Shoal during Duterte’s trip to Beijing last week. Satellite imagery from AMTI also attests to the fact that China retains the capacity to retake control of these fishing grounds. China and Philippines instead seem to have reached an informal nonbinding agreement that China can revoke at any time.

While these concerns should not be overlooked, actions are at least as important as words in this case. The fact that China is now fully compliant with two rulings and in clear violation of three suggests that there is still room, particularly with regard to the remaining ten rulings, for more negotiated solutions.