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Manila Wins its Day in Court: Will Other Nations Follow?

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Protesters displaying placards during a rally in front of the Chinese consulate in Manila on Aug 31, 2015.  PHOTO: AFP

The unanimous ruling on October 29 by an international arbitral tribunal over its jurisdiction to arbitrate territorial claims claimed by the Philippines in the South China Sea comes as a slap in the face to Beijing, and may lead to further filings by Southeast Asian nations.  Under its notorious nine-dash line, or “cow’s tongue”, Chinese leaders claim over 90 percent of the South China Sea and have argued against any international jurisdiction over sovereignty issues.

The current ruling, the first of its kind, concerns a case filed by the Philippine government at the Permanent Court of Arbitration in the Hague in 2013, under the United Nations 1982 Convention on the Law of the Sea (UNCLOS). According to the ruling, the case will now be handled by the Arbitral Tribunal under UNCLOS, and is expected to determine maritime zone entitlements of ten reefs and shoal in the South China Sea: Scarborough Shoal, Mischief Reef, Second Thomas Shoal, Fiery Cross Reef, Subi Reef, Gaven Reef, Hughes Reef, Johnson Reef, Cuarteron Reef, and McKennan Reef.  Some of these reefs are currently being converted into islands.

Beijing bases its claims on the disputed waters and features as “traditional fishing grounds,” despite the presence of fisherman from around the region for centuries. For example, the Scarborough Shoal was referenced in a May 2012 article in the PLA Daily, claiming a Chinese astronomer, Guo Shoujing, first visited the shoal in 1279 as part of a survey of the Chinese empire. China’s formal claim to the shoal was made in 1935, while Manila says its initial claim was in 1937-1938, although it was unable to publicize its claim due to Japanese incursions and invasion. The shoal did not feature on Philippine maps until 1997, when Manila began to press its claim by taking ownership of the shoal as terra nullius, or “no man’s land.”

Beijing has reiterated it will not accept the Tribunal’s resolution, arguing that the only way forward is through bilateral negotiations.  China had previously argued in a position paper that the “2002 China–ASEAN Declaration on the Conduct of Parties in the South China Sea constitutes an agreement to resolve disputes relating to the South China Sea exclusively through negotiation.”

International leaders, however, welcomed the decision over the Court’s jurisdiction.  German chancellor Angela Merkel recently addressed the issue while on a visit to Beijing, “The territorial dispute in the South China Sea is a serious conflict. I am always a bit surprised why in this case multinational courts should not be an option for a solution.”

Merkel’s statement clearly reflects Beijing’s two faces over the rule of law, for despite China ratifying UNCLOS in 1996, Beijing now says it will not accept procedures referring to “binding decisions” and compulsory processes under the law.  While Beijing considers certain UNCLOS rules to be inconsistent with its national policy, it has similarly chosen to invoke UNCLOS law to seek a binding decision for its claim against Japan on the Senkaku/Diaoyu Islands in the East China Sea. China is also party to the Declaration on the Conduct for Parties in the South China Sea, which it signed in 2002. Through its dredging efforts to create artificial islands, Beijing has blatantly ignored Article 5 of the DOC, which calls for “self-restraint in the conduct of activities that would complicate or escalate disputes in uninhabited islands and reefs.”

So while it is high time for an international referee like the Arbitral Tribunal under UNCLOS to step in, separate the fighters, and issue a ruling concerning the sovereignty of the disputed waters, it is highly unlikely the Court will be able to enforce a ruling against China, which Beijing is likely to ignore.  Any court rulings issued by the tribunal are binding on its member countries, including China, but the tribunal has no powers of enforcement, so some of its rulings have been ignored before.  

The Tribunal’s eventual ruling, expected in 2016, will also be limited in scope to asserting whether or not specific features (rocks and low-tide elevations) can claim EEZs. Some of the reefs being converted into islands by China will fail to be recognized as islands–thereby losing any expanded territorial claims. Under UNCLOS, artificial islands are entitled to the rights enjoyed by the original feature–a 12 nautical mile territorial sea for rocks above water at low tide, and a 500-meter safety zone for elevations below water at low tide.  

Should Beijing refuse to honor a potential ruling against their claims of sovereignty, we can expect China to again attempt to assert its economic muscle to persuade other regional nations to settle the disputes bilaterally.  China’s Vice Foreign Minister Liu Zhenmin announced earlier this month Beijing’s offer to Southeast Asian countries of around US$10 billion in infrastructure loans.    

Yet China’s weakening muscularity and an economic pivot by Washington could lead other Southeast Asian nations toward pursuing similar rulings.  This month, some voters in Vietnam put forth a proposal to their National Assembly, calling for the initiation of legal proceedings against China at an international tribunal over its violation of the Southeast Asian country’s sovereignty in the East Vietnam Sea (South China Sea).  How far this request will go is disputed–Hanoi will need to balance the concerns of its nationalistic citizenry while maintaining close ties to its communist brother.  Indonesia has also hinted it may also go to court to assert its sovereignty over disputed territory.

Beijing can still effectively lobby its other neighbors–as it did when it scuttled efforts by Association of Southeast Asian Nations defense ministers to mention the South China Sea in a joint declaration after meetings in Malaysia earlier this month. On the international stage, a negative outcome for Beijing will surely lead to a loss of face for Chinese leaders, and they will face increasing isolation for failing to respect international law–a precondition for their regaining great nation status.

 

Author

Gary Sands
Gary Sands

Gary Sands is a Senior Analyst at Wikistrat, a crowdsourced consultancy, and a Director at Highway West Capital Advisors, a venture capital, project finance and political risk advisory. He has contributed a number of op-eds for Forbes, U.S. News and World Report, Newsweek, Washington Times, The Diplomat, The National Interest, International Policy Digest, Asia Times, EurasiaNet, Eurasia Review, Indo-Pacific Review, the South China Morning Post, and the Global Times. He was previously employed in lending and advisory roles at Shell Capital, ABB Structured Finance, and the U.S. Overseas Private Investment Corporation. He earned his Masters of Business Administration in International Business from the George Washington University in Washington, D.C. and a Bachelor of Science in Finance at the University of Connecticut in Storrs, Connecticut. He spent six years in Shanghai from 2006-2012, four years in Rio de Janeiro, and is currently based in Ho Chi Minh City, Vietnam. [email protected]

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