A political maelstrom in the South China Sea
BY MARK VALENCIA
HAIKOU, CHINA – Beijing and Manila continue their increasingly shrill propaganda war over the South China Sea with each accusing the other of violating prior agreements and provoking tensions. What is going on and what are the possible outcomes of this dispute — and their implications?
Over the past few years, the Philippines and China have engaged in a series of increasingly dangerous incidents stemming from their conflicting claims in the South China Sea. On Jan. 22, a potential watershed date in the politics of the South China Sea, the Philippines, with tacit U.S. support, filed a complaint against China with the Law of the Sea’s dispute settlement mechanism — the International Tribunal for the Law of the Sea based in Hamburg, Germany. Despite China’s refusal to participate, the process is continuing and an arbitration panel has been appointed and convened.
However, the arbitration is likely to be a long drawn-out process that may take years — and settle little or nothing.
In an ideal world, the outcome of the arbitration would be based solely on the law and the facts. Both sides would accept it and continue their relations. But this is not an ideal world. Indeed the outcome of this case could have significant political implications for the Law of the Sea’s dispute settlement mechanism, for the Law of the Sea itself and for conduct and relations in the South China Sea and beyond.
This is one of those “slippery” situations and — with sympathy for the arbiters — international politics will play a role — whether they like it or not. Indeed they are at the center of a political maelstrom. Already one of the initial arbiters — a very distinguished and experienced international figure as well as a law of the sea expert — withdrew because “his wife is a Filipina.”
One of the reasons China refused to participate in the process is that when its leaders ratified the Convention in 1996 they assumed — obviously incorrectly — that the Law of the Sea dispute settlement mechanism could be avoided by direct negotiations to settle maritime jurisdictional disputes — where it could use its power to bend any settlement in its favor. Judging by China’s anger, this turn of events must have come as a surprise.
Nevertheless, it appears that whatever the arbiters’ decision, China will simply refuse to abide by it and shrug off the political fallout. This would not be the first time a powerful country has refused to participate in an international court proceeding. For example, in 1984 Nicaragua brought the United States to the International Court of Justice. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua’s harbors. The U.S. refused to participate in the proceedings after the court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the U.N. Security Council and thereby prevented Nicaragua from obtaining any actual compensation.
In the present case, China’s refusal to participate and its noncompliance with the judgment would likely weaken the reputation and authority of the tribunal and international law in general. But it would also give notice that China is not to be trifled with — that it will not “be taken advantage” of by small Asian countries — some still linked to and influenced by their former colonial masters.
There are several possible outcomes of the arbitration — each with its own consequences. First the arbitration panel must decide if it has jurisdiction to hear the case. China’s supporters maintain that it does not and that the complaint involves errors of fact and issues that are excluded from the panel’s purview — like boundary delimitation, links to questions of sovereignty, claims to historic title and law enforcement activities.
China’s supporters also contend that the Philippines has not exhausted its obligation to negotiate the issues bilaterally as stipulated in the mutually agreed Declaration on Conduct of the Parties in the South China Sea. This political document states that the “parties concerned undertake to resolve their territorial and jurisdictional disputes through negotiations by sovereign states directly concerned.”
Having fought tooth and nail for this provision, China has continued to cling to it in this dispute. Moreover they argue that China has never claimed sovereignty over all the maritime space and waters within the “9-dashed U-shaped line” as alleged by the Philippines in its complaint.
These analysts argue further that China’s U-shaped line represents a historic claim that is independent of and predates the current Law of the Sea. They conclude that judgment in the case cannot be made without considering sovereignty and boundary delimitation issues, both of which are beyond the court’s purview.
Of course China claims none of this officially because it refuses to participate in the process. Nevertheless, the Philippines demarche cleverly tried to avoid all these obstacles and essentially argues that China’s U-shaped line claim and enforcement thereof violates the Law of the Sea.
And for China there is indeed the problem of its official maps that encompass most of the South China Sea within its “national border.”
If the panel decides it does not have jurisdiction, realists will crow that “international law is the arms of politics,” and that international law is shaped and works in favor of the big powers. More importantly the Southeast Asian claimants — including besides the Philippines, Brunei, Malaysia, and Vietnam — will be resigned to negotiating their overlapping claims with an ever increasingly powerful and intimidating China. And — like the Philippines — they will most likely take political and even military measures to protect themselves — like drawing ever closer to the U.S.
On the other hand, if the panel decides it does have jurisdiction and goes on to rule against China’s 9-dashed line claim, it could be committing institutional suicide. China will not abide by the ruling, legal and political uncertainty will reign in the South China Sea, and violent incidents there are likely to proliferate. The authority and legitimacy of the dispute settlement mechanism and even the Law of the Sea itself will be undermined.
The “emperor” — in this case the tribunal that oversees the dispute settlement mechanism — will be shown to have no clothes and no teeth and may be sidelined in future maritime dispute resolution. Perhaps more significant, domestic opposition to U.S. ratification of the treaty will be given a substantial boost amid cries of “that could happen to us.”
Thus the panel is “damned if it does, damned if it doesn’t.” In such a situation, the more likely outcome is a mixed result. The panel may decide it has jurisdiction and then suggest a compromise recognizing that China has “historic title” to a share of the resources in the disputed area but that it must share them with the Philippines (and by implication, the other claimants).
The betting is on this option — or a similar compromise. But this of course all depends on the “arbiters.” If they insist on “legal purity” — such as “all or nothing” they may choose the first or second option — and like Samson bring the temple down upon themselves.
Then the only winners in this seminal saga would be the U.S. law firm that the Philippines hired to represent it in this case.
Mark J. Valencia is adjunct research fellow at the China National Institute for South China Sea Studies. A shorter version of this article appeared in The Straits Times.
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