The tribunal on.../News analysis

The Hague ruling: Award in but jury's out on what's next at sea

An award by an international law tribunal often marks not the end of a dispute but its next phase.

If the case is one in which both parties agreed to take their dispute to an international court for adjudication, as Singapore and Malaysia did on Pedra Branca, then the post-award phase can be one that sees the two sides working together to sort out issues such as maritime boundaries.

But the South China Sea Arbitration that ended yesterday did not start that way. Instead, it was the Philippines that brought the case against China in 2013. China has consistently rejected the Arbitral Tribunal's jurisdiction over the dispute and said it would not accept its judgment.

Now that the tribunal has made a final award that is overwhelmingly in favour of the Philippines, a big question mark hangs over what will happen next in the waters around the disputed rocks and shoals.

Will the post-award phase be marked, as some analysts have predicted, by rising tension in the South China Sea? Or will the "calm and restraint" that Indonesia, Asean's largest member, called for yesterday prevail?

The answer to those questions will hinge on the future conduct of the parties involved.

The tribunal, for its part, can only hope that both parties will act in good faith. Indeed, in the closing paragraph of its award, it recalled that "it is a fundamental principle of international law that bad faith is not presumed".

It did not accede to the Philippines' request for a declaration on how China should conduct itself going forward, instead noting that China had "repeatedly accepted that the United Nations Convention on the Law of the Sea (Unclos) and general obligations of good faith define and regulate" its conduct.

No ruling in a court, no matter how high-powered, can prevent conflict unless states choose to keep the peace. The Philippines may have won the legal argument but, on the ground, China trumps by virtue of its size and strength.

Will China withdraw from the disputed rocks and shoals? Not likely. Its Foreign Ministry yesterday maintained that it has territorial sovereignty and maritime rights and interests in the South China Sea "based on the practice of the Chinese people and the Chinese government in the long course of history and the position consistently upheld by successive Chinese governments, and in accordance with national law and international law".

Chinese President Xi Jinping rejected the tribunal's award but expressed China's commitment to maintaining peace and stability in the South China Sea.

In the Philippines, leaders reined in their jubilation, with Foreign Affairs Secretary Perfecto Yasay calling for "restraint and sobriety" in the wake of the milestone decision.

That is a reassuring start to the post-award phase but questions remain. Are bilateral talks on the cards? Whose court is the ball in anyway?

Was the Philippines' low-key response a sign that the new government in Manila is keener than its predecessor to settle the issue in a non-confrontational way, perhaps with an eye on winning much-needed investments from the Chinese?

How long can this period of restraint hold for? What if an unplanned provocation occurs?

What plan do the region's two maritime powers - namely the US and China - have in place to minimise the risk of accidents that may escalate into conflict?

The award may be in but the jury is still out on how best to ensure peaceful conduct in the region's seas.

A version of this article appeared in the print edition of The Straits Times on July 13, 2016, with the headline 'Award in but jury's out on what's next'. Print Edition | Subscribe