Filipino student activists hold mock Chinese ships to protest China's recent island-building and alleged militarisation ...
Filipino student activists hold mock Chinese ships to protest China's recent island-building and alleged militarisation of the disputed Spratly Islands. Photo: AP
In the sleepy days between Christmas and New Year, an intrepid flotilla of young activists set out from Palawan Island in the Philippines for a tiny island in the Spratlys, to protest China's activities in the South China Sea.
A creative approach, but it was successful, in its way.
The Philippines government, while it noted their patriotism, did not endorse the voyage into what it now calls the West Philippine Sea.
Filipino activists travelled to a tiny settlement in the Spratly Islands in December to protest against China's ...
Filipino activists travelled to a tiny settlement in the Spratly Islands in December to protest against China's activities in the South China Sea. Photo: supplied
But they got China's attention: "We are strongly dissatisfied with the actions and words of the Philippine side," said foreign ministry spokesman Lu Kang on December 28. "We once again urge the Philippine side to withdraw all its personnel and facilities from the Chinese islands and reefs it is illegally occupying."
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In Australia, China's artificial island building is viewed uneasily. But in the Philippines, China's unilateral moves to claim a vast sweep of ocean that includes key trade routes, fishing grounds and mineral resources have electrified the archipelago nation of 100 million. It has made China relations a hot issue in the forthcoming presidential elections. Ninety-one per cent of Filipinos said in research last year by the Pew Centre that they were concerned or very concerned about the nation's territorial disputes with China .
"Anti-China sentiments in the Philippines are at a historic high, and it is serving as a new glue for patriotic mobilisation," says Richard Javad Heydarian​, Manila-based academic and author of Asia's New Battlefield: The USA, China, and the Struggle for the Western Pacific. "There is a sense of Cold War 'anti-Red' paranoia, almost."
Filipinos and Vietnamese expatriates display placards during a rally at the Chinese Consulate to protest China's South ...
Filipinos and Vietnamese expatriates display placards during a rally at the Chinese Consulate to protest China's South China Sea activities. Photo: AP
Into this politically charged debate, and amid escalating regional tensions, an international tribunal convening in The Hague will soon hand down its decision in a landmark legal case that the Philippines has brought against China, seeking a definitive ruling under the law of the sea on the extent of its maritime entitlements.
China's response to an unfavourable decision in the David and Goliath style case will provide a strong signal of China's future intentions: as the ascendant superpower in Asia, will it dominate by force, or play by the rules?
China has stalled for over a decade on diplomatic efforts to manage overlapping territorial claims in the South China Sea, but the "last straw", says the Philippines' lead counsel, Paul Reichler​ from Washington DC law firm Foley Hoag​, "was Scarborough Shoal".
A handout satellite image shows dredgers working at the northernmost reclamation site of Mischief Reef, part of the ...
A handout satellite image shows dredgers working at the northernmost reclamation site of Mischief Reef, part of the Spratly Islands, in the South China Sea, March 16, 2015.
"It's a very rich and important fishing ground 120 miles off the coast of Lusan and the Philippines had controlled the fishing in that area and permitted access for Chinese fishermen," Mr Reichler says, "but in April 2012 China unilaterally expelled the Philippines fishermen, and insisted the Scarborough Shoal was part of its sovereign territory. That was the latest manifestation in a series of Chinese expansionist moves."
"This convinced them that diplomacy was unsuccessful and they... saw a legal effort to vindicate their rights - as two parties to the Law of the Sea Convention - as somewhere they could compete with China on equal terms."
The Law of the Sea grants countries a 12 nautical mile territorial sea and an exclusive economic zone of 200 nautical miles from the coastline and governs territorial sea rights to various features described poetically as "rocks" and "low tide elevations". China's island-building on what the Philippines says are low-tide elevations appears to be an attempt to create territorial rights around features which, under the law, do not have them.
The Philippines v China in the Permanent Court of Arbitration over the South China Sea.
The Philippines v China in the Permanent Court of Arbitration over the South China Sea. Photo: Supplied
"For the Philippines, arbitration will clarify what is ours, specifically our fishing rights, rights to resources and rights to enforce laws within our exclusive economic zone," says Jim San Agustin​, ​charge d'affaires at the Philippines embassy in Canberra. "For the rest of the international community, the clarification of maritime entitlements will assure peace, security, stability and freedom of navigation in the South China Sea."
About a third of the world's trade ships through the area and with last month's dramatic reports that China had deployed missiles to Woody Island in the Paracels​, a nearby island chain to the Spratlys, there is growing concern about China's long-term intentions.
In this arbitration, most experts think the Philippines will win. But despite being an active participant in negotiating the law of the sea, China has rejected the tribunal's jurisdiction. Its rhetoric of "indisputable sovereignty" suggests Beijing sees its claims to the South China Sea as non-negotiable. (The Chinese government did not wish to comment for this article.)
There are at least two incompatible versions of reality here, and not just over sovereignty. The contradiction goes to the heart of what sort of superpower China will be. The more pessimistic, hawkish version tends to view China's behaviour as evidence of secret intent to dominate the region by force; while others - optimists, multilateralists, international lawyers - point out that China has benefited enormously from the rules-based order and international law, and will see considerable value in continuing to support it.
The big question is how China might react to a legal loss, in a major test of these competing versions of reality.
Almost no-one thinks China would dismantle its artificial islands. It is probably doubtful countries would lay sanctions on China for continuing to defy any order. But there is a sense that China's moral heft would be undermined by a loss, and even an outside chance that future freedom of navigation exercises could have lower expectations of challenge from Beijing.
The Philippines' lawyer sees cause for optimism.
"The tribunal can not forcibly make China do anything," Mr Reichler concedes. "The tribunal doesn't have an army or a police force... But that's true of all international arbitral tribunals, including the International Court of Justice. Yet in 95 per cent of the cases the states accept the result, even if they're unhappy. They comply with the judgement because there are strong disincentives to defy a judgment of an international tribunal. If a state does that then it becomes an international outlaw and creates a very negative image for itself."
Professor Heydarian agrees: "China has the option, of course, of completely ignoring the result, but that will carry huge soft power costs. There is just no way for China, which spends an estimated $10 billion annually on soft power initiatives like media propaganda, to claim leadership and authority in Asia but at the same time completely ignore a legal verdict by a third party, composed of leading maritime law experts, formed under the aegis of international law. China will look like an outlaw."
It will be up to the US - ironically one of the handful of nations not party to the Law of the Sea convention - to decide whether to pursue more 'freedom of navigation' exercises through the disputed waters following the tribunal's decision.
Mr Reichler sees a legal victory for the Philippines as part of a long game. "It may be that China's first reaction [to a judgment in favour of the Philippines] reflects national pride more than national interest. The way to judge its post-judgment conduct is not by its initial reaction, but how its behaviour changes over the course of the next six months or year after the judgment is issued.
"I think it's inevitable that China will eventually feel that its own interests demand it bring itself more or less into conformity with the judgment through a negotiated settlement with the Philippines."
But Vera Joy Ban-eg from the activist group that led the protest voyage, Kalayaan Atin Ito (literal translation: Kalayaan is Ours) is not so hopeful. Does she think a legal victory for the Philippines would change China's behaviour? She is succinct.
"No."