Two and a half years after the Philippines first sought international arbitration in its disputes with China over the South China Sea, the first hearings were finally held in The Hague this month by the Permanent Court of Arbitration, despite China’s refusal to take part and its contention that the tribunal lacks jurisdiction.
China’s Foreign Ministry last December published a “position paper” explaining its rejection.
On July 13, at the end of its weeklong hearings, the arbitral tribunal issued a press release saying that although China refuses to participate, the five-man tribunal “considered the communications by China to constitute, in effect, a plea” that the Philippines’ submissions fall outside of the tribunal’s jurisdiction. It promised to rule on the jurisdiction issue soon and, in any event, no later than the end of the year.
The next day, a Chinese foreign ministry spokesperson reasserted that “China will never accept any imposed solution or unilaterally resorting to a third-party settlement”.
However, a senior American official, Assistant Secretary of State Daniel Russel, said in a major speech last week that if the tribunal rules that it has jurisdiction and subsequently makes a decision on the case, then “both the Philippines and China are obligated to abide by whatever decision may be rendered in the case, whether they like it or not”.
China clearly did not like what Russel said. A foreign ministry spokesman accused the United States of acting like an “arbitrator outside the tribunal”, designating the direction for the arbitral tribunal.
China, it seems, is feeling the heat.
Clearly, even if the tribunal rules that it has jurisdiction and decides in favor of the Philippines, China will ignore the ruling. Still, such a development will be a major blow to China.
If the tribunal rules that China’s “nine-dash line”, which encompasses almost the entire South China Sea, is inconsistent with international law, China’s standing will suffer a major blow as it will be seen as an international scofflaw.
Other countries, such as the Philippines and Vietnam, will likely feel emboldened to develop resources in what the tribunal declares to be their exclusive economic zone – a 200-nautical-mile area extending from their coast – despite China’s claims of “historic rights”.
And if China then tries to use force, other countries, including the United States, will have the law on their side if they oppose the Chinese actions.
In his keynote address, delivered at a conference on the South China Sea sponsored by the Center for Strategic and International Studies in Washington, Russel again asserted American neutrality where there are competing sovereignty claims, but added: “We are not neutral when it comes to adhering to international law. We will come down forcefully when it comes to following the rules.”
Manila acknowledges that the tribunal does not have authority to make rulings on issues of sovereignty. However, Albert del Rosario, the secretary of foreign affairs of the Philippines, argued that “we wish to clarify our maritime entitlements in the South China Sea, a question over which the tribunal has jurisdiction”.
Under the United Nations Convention on the Law of the Sea, features that are under water except at low tide are not considered islands and even rocks that are above water but are not capable of sustaining human life generate only a 12-mile territorial sea but not an exclusive economic zone.
China has been busily reclaiming land to substantially increase the size of the features it controls – all of which are considered only rocks or low-tide elevations – but the law of the sea does not recognize artificial islands.
Four Southeast Asian nations – Vietnam, the Philippines, Malaysia and Brunei – have claims that overlap Chinese claims. Indeed, there are conflicting claims among ASEAN members.
The ASEAN would be in a stronger position vis-à-vis China if its members could resolve conflicts among themselves first.
Recently, Michael McDevitt, a retired US admiral who is now a senior fellow with CNA Strategic Studies, published what he called a “modest proposal” to help reconcile overlapping ASEAN claims, beginning with the Philippines and Malaysia, then resolving differences between Malaysia and Vietnam, Vietnam and Brunei and, finally, the Philippines and Vietnam.
McDevitt acknowledged that his proposal “will likely never take place” given the very difficult compromises that parties would have to make.
But, if it did happen, it would not only enable the ASEAN to speak with one voice but it would also make it easier for each country to exploit resources in its EEZ.
This is one pathway. The other is a positive decision by the Permanent Court of Arbitration. Perhaps some combination of both will be needed. But it won’t be easy.
– Contact us at [email protected]