Prashant Kumar Singh
The verdict of the Permanent Court of Arbitration in The Hague on July 12, 2016 in the case filed by The Philippines against China may prove to be a turning point in the long-festering multi-state maritime territorial disputes in the South China Sea. The Court has given a decisive ruling in favour of The Philippines by upholding all the latter’s contentions, though there is no mechanism to enforce the judgment. Although, despite screaming media headlines, nothing of great optical value for the media is likely to happen immediately, the judgement is indeed a major development.
In the short-term, in reaction to what is being widely perceived as “reputational damage” for it, China may adopt knee-jerk and aggressive posturing in the South China Sea. Vietnam had already accused China of sinking its boats a couple of days before the verdict.1 Domestic political compulsions may also force the Chinese government to show a defiant face to the other claimants in the maritime territorial disputes in the South China Sea, and particularly to the US — a security guarantor in the region for claimants such as The Philippines.
In the medium to long-term, the ruling may even prove a turning point in the overlapping maritime disputes. It may compel introspection in China and make it take a more reasoned view of its claims in the medium term. China’s calls for bilateral negotiations may be indicative of such a possibility. However, whether the ruling will eventually pave the way for China’s climb-down or it will further complicate the situation needs to be monitored.2
The Philippines, a claimant in the South China Sea maritime territorial dispute along with China, Vietnam, Malaysia and Brunei, and the unrecognized claimant Taiwan, moved the Court in January 2013 seeking arbitration on its 15-point submission (contentions against China). The submission can be classified in four major types: China’s historic rights in the Sea and validity of its ‘nine-dash line’, the status of features in the disputed waters, the lawfulness of Chinese actions, and the harm caused by China to the marine environment as well as its aggravation of the dispute.
Although the South China Sea region’s maritime territorial disputes are long-standing, The Philippines moved the Court only in January 2013. The immediate context of this move was China’s increased military and non-military activities in the region such as patrolling, military infrastructure building, and exploitation of mineral resources, and other civil and commercial activities. China was not prepared for this smart move by The Philippines. It has all along favoured a resolution of the disputes on a bilateral basis, and shunned the route of international arbitration. Here, it should also be underlined that The Philippines did not approach the Court for settling the sovereignty issue per se. This needs to be highlighted because China refused to participate in the proceedings in any manner, contending that the Court had no jurisdiction on the sovereignty issue. However, the fact remains that legally the adjudication sought was not for settling the sovereignty issue. The smartness of the move by The Philippines lay in the fact that by seeking a ruling under the United Nations Convention on the Law of the Sea (UNCLOS) on the legal questions and issues germane to the maritime territorial dispute in the South China Sea, Manila had pulled the rug from under China’s sovereign claims. The award is indeed a resounding legal victory for The Philippines.
On the question of China’s historic rights in the sea and validity of its ‘nine-dash line’, the Court has unequivocally maintained that “as between the Philippines and China, there was no legal basis for China to claim historic rights to resources, in excess of the rights provided for by the Convention [UNCLOS], within the sea areas falling within the ‘nine-dash line’.”4 Thus, the Court has investigated and rejected the historical and legal validity of the ‘nine-dash line’, which, in a way, quashes China’s sovereign claims. On the status of features in the South China Sea, the Court ruled that “…many of the features in the Spratly Islands are currently controlled by one or another of the littoral States, which have constructed installations and maintain personnel there…the current presence of official personnel on many of the features does not establish their capacity, in their natural condition, to sustain a stable community of people and considered that historical evidence of habitation or economic life was more relevant to the objective capacity of the features… temporary use of the features by fishermen did not amount to inhabitation by a stable community and that all of the historical economic activity had been extractive in nature. Accordingly, the Tribunal concluded that all of the high-tide features in the Spratly Islands are legally “rocks” that do not generate an exclusive economic zone or continental shelf.” Thus, the ruling rebuffs China’s perceived intentions of extending its maritime boundaries through the claimed so-called islands. As to the lawfulness of Chinese actions, the Court “found that Chinese law enforcement vessels had repeatedly approached the Philippine vessels at high speed and sought to cross ahead of them at close distances, creating serious risk of collision and danger to Philippine ships and personnel”, thus breaching “its obligations under the Convention on the International Regulations for Preventing Collisions at Sea, 1972, and Article 94 the Convention concerning maritime safety.”6
Finally, on the question of whether China has harmed the marine environment and aggravated the dispute, the Court indicted China that it “had violated its obligations to refrain from aggravating or extending the Parties’ disputes during the pendency of the settlement process by building “a large artificial island on Mischief Reef, a low-tide elevation located in the exclusive economic zone of the Philippines”, causing “permanent, irreparable harm to the coral reef ecosystem” and permanently destroying “evidence of the natural condition of the features in question.” Thus, the Court has accepted The Philippines’s accusation that China has indulged in reckless behaviour in the maritime region, aggravating the dispute and worsening the security situation therein.
Reactions and responses to the Court ruling have been along expected lines. Perfecto Yasay Jr., Foreign Affairs Secretary of The Philippines, appealed for “restraint and sobriety” after the ruling.8 The Chinese reaction to the judgement could not be but what was already well-known. The Chinese foreign ministry declared the ruling “null and void with no binding force”, and asserted that “the arbitration was “a political farce under the pretext of law.”9 President Xi Jinping asserted that “the South China Sea Islands have been China’s territory since ancient times. China’s territorial sovereignty and maritime interests in South China Sea, in any circumstances, will not be affected by the award.” Premier Li Keqiang remarked that “by not accepting nor recognizing the award, China is in fact safeguarding the international law.” The Global Times, which is closely associated with the Communist Party of China, thundered in its trademark style that the verdict was more “shameless than many people had ever expected. All Chinese people are outraged by this illegal verdict and the world’s peace-loving public is astonished by the biased decision that may escalate regional tensions”. The newspaper also carried the following indignant comments of experts: “the judgment…has lived up to the worst expectations”, “the international tribunal chose to neglect history and facts and it is unfair to blame China for endangering the environment in the South China Sea”, and “since China refused to refer the case to arbitration, the whole procedure of arbitration is invalid and ridiculous. The ruling is essentially a joke. On July 13, 2016, China issued its own White Paper on its position on the maritime dispute with The Philippines. Reiterating its sovereign claims over the Parcel and Spratly archipelagos, the spokesperson of the Vietnamese foreign ministry reconfirmed Vietnam’s “consistent stance” of advocating “peaceful resolution of the East Sea dispute in accordance to international law” and its support for “strict implementation of the 1982 UNCLOS.”15 Japan and Australia have termed the ruling “final and binding” under UNCLOS.16 Stating that it supports peaceful resolution “including through arbitration,” the US has categorically maintained that “the Philippines was acting within its rights under the Convention in initiating this arbitration.”For its part, India has seemingly taken a nuanced position. While avoiding the use of the phrase “final and binding”, it has reiterated its long-standing and principled support for UNCLOS under which the case was decided.18
In spite of its apparent derision of the decision and the brave face it has put up, the Court’s award is not without implications for China. Ahead of the verdict, China had claimed the support of 60 countries and political parties world-wide for its position on the dispute. It appears that China has offered diplomatic and economic inducements to countries for supporting its position.
China has also been reaching out to Vietnam and The Philippines to come back to the bilateral mode for negotiations. Even after the ruling, it has renewed its call for talks with The Philippines, although certainly not on the basis of the Court’s ruling.
While China may question the procedural legality of the case, it cannot challenge the legitimacy of the institution of the Court and its judicial process especially given that the Court discussed China’s objections regarding the jurisdiction issue at length and overruled them. China, which is integrated with the international order and holds a leadership position in many global and regional institutions such as the UNSC, the East Asia Summit (EAS) and the RCEP process, cannot display its 1950s and 60s vintage hostility towards international institutions. Pushing its point against the Court would have an adverse reflection on China’s global standing.
Notwithstanding China’s opposition, the ruling has persuasive appeal for the larger international community. It is likely to blunt the effect of China’s diplomatic and economic inducements to countries for supporting its case. The judgement may also embolden and make more assertive the other claimants, including The Philippines. Further, the ruling may also be seen as “a loss of face” for Xi Jinping, who is perceived to be engaged in an intense domestic power struggle.
As has been speculated all along, the demonstrations in Hong Kong in 2014 and China’s adoption of a tougher stance towards the South China and East China Sea disputes under Xi Jinping might have been partly the result of domestic factional politics. Therefore, an aggressive Chinese posturing in the South China Sea could well ensue in the short-term. However, whether the ruling will induce China to adopt a fresh look at the dispute or whether it will reshape elite and public opinion in China or it would only further complicate the domestic and regional political situations will depend a lot on the domestic, regional and international responses in the coming days and weeks.
Prashant Kumar Singh