SOUTH CHINA SEA ARBITRATION: DON’T COUNT ON A DECISIVE PHILIPPINES WIN

By Andrew Chubb / InternationalAffairs.org

On 12 July, an international arbitral tribunal will hand down its findings in a landmark case brought by the Philippines against China over the South China Sea issue. The decision will have far-reaching implications, not only for this contentious maritime dispute but also for international law and politics in East Asia.

United States officials have expressed concern that the decision may exacerbate tensions in the region if China responds to an adverse finding with new assertive moves in the disputed area. However, contrary to the expectations of many observers, a total victory for the Philippines is unlikely. At least some key findings will probably favour China due in part to the political interest of the tribunal in protecting the status and relevance of the law of the sea in international politics.

The case has been particularly contentious due to China’s allegation that the Philippines is “abusing” the UN Convention on the Law of the Sea (UNCLOS) processes. China’s subsequent refusal to take part in the proceedings, relentless propaganda campaign aimed at delegitimising the tribunal among domestic and international audiences, and its frenetic efforts to enliststatements of support from foreign governments, have created a backdrop that means the tribunal is unlikely to decide the case on legal merits alone.

Even if the merits of the Philippines’ claims are strong, the arbitrators will be keen to avoid appearing to make a one-sided ruling. Instead, they will seek to make at least some concessions to China in order to neutralise Beijing’s political attacks on the tribunal’s authority, minimise the political fallout and forestall the possibility of a Chinese withdrawal from UNCLOS. The latter scenario, while highly unlikely, would be a major disaster for the cause of international law, so it is likely to be among their considerations as legal professionals.

The current state of play

The Philippines has asked the arbitral panel to rule on 15 specific questions concerning the South China Sea with the aim of clarifying the limits of the sea areas that China can legally claim under UNCLOS. The Philippines’ contentions can be summarised as:

  • China’s claims to “historic rights” within the nine-dash line are invalid
  • Scarborough Shoal is not an island, and therefore generates no entitlement to maritime rights beyond 12 nautical miles
  • China’s outposts in the disputed Spratly archipelago are also not islands
  • China has conducted maritime law enforcement and economic exploitation activities in areas where it does not have any lawful claim
  • China’s massive island-building projects breach UNCLOS rules on artificial islands, constitute unlawful appropriation of maritime spaces and violate the Convention’s obligations not to damage the marine environment.

The Philippines is asking the tribunal to order China to drop any unlawful claims and desist from any unlawful activities. Inresponse, China argues that these matters are “in essence” issues of territorial sovereignty, which UNCLOS was not intended to govern, and maritime boundary demarcation on which China has invoked its right to reject compulsory dispute resolution. Beijing also argues the Philippines is legally bound by its previous “commitments” to settle its disputes with China through bilateral negotiations.

However, in October 2015, the tribunal issued its preliminary award  and found that it is competent to rule on at least seven of the Philippines’ 15 claims against China. In an official statement, China expressed anger at the ruling, this time accusing both the Philippines and the arbitrators themselves of having “abused the relevant procedures”. Notably, however, it avoided any suggestion that it was rejecting the UNCLOS itself.

Political considerations

As Phillipines legal academic Jay Batongbacal has noted, the tribunal had a strong incentive to accept jurisdiction over the case because doing otherwise would have been tantamount to an admission that UNCLOS is irrelevant in one of the world’s most important waterways, and one of its most dangerous maritime hotspots.

However, the same considerations make a total victory for the Philippines unlikely. Not only would this outcome draw even more furious political attacks on the tribunal’s authority from China, a decision seen as one-sided would increase the rhetorical bite of Beijing’s international propaganda.

The Award on Jurisdiction issued last October foreshadowed findings favourable to China on some key issues. For example, it noted that if China’s island-building and law enforcement actions are found to be “military in nature” then it may be unable to rule on their legality as these are excluded from the Convention’s dispute resolution procedures.

Perhaps even more importantly, the Award also flagged the possibility of the tribunal providing an implied reading of the nine-dash line’s meaning for China:  development that could effectively legalise the PRC’s infamously unclear and expansive claim.

What to expect

The case’s greatest significance may lie in providing the first legal precedent defining specific criteria for what constitutes an “island” (entitled to an Exclusive Economic Zone and Continental Shelf under UNCLOS), as opposed to a “rock” (which is only entitled to 12 nautical miles of territorial sea).

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