- Jul 20 2016
The biggest issue arising from last week’s verdict by the arbitral tribunal on the South China Sea is the question of the rule-based international system. Since 1971, the world community has made an effort to bring the People’s Republic of China into this system by helping it become a member of the UN Security Council, the UN Convention on the Law of the Seas (UNCLOS), the Nuclear Non-Proliferation Treaty, the World Trade Organisation and other global regimes.
By rejecting, as it has done, the procedure of the compulsory dispute-settlement mechanism of UNCLOS, China could well undermine a raft of international agreements that incorporate arbitration to resolve a dispute which cannot be settled through bilateral negotiation. This has wider implications, since compulsory arbitration often feature in business agreements.
In ratifying the UNCLOS, the Chinese voluntarily accepted its compulsory dispute resolution mechanism. Beijing, therefore, has to accept the tribunal’s decision because UNCLOS rules say it is the tribunal which decides whether the exclusions claimed by a state apply in a particular case, not the state itself. The tribunal’s award is final and without appeal. In this case, the tribunal considered China’s objections and overruled them.
Yet, realpolitik would suggest that the tribunal decision is unlikely by itself to persuade China that its claims in the South China Sea are far more limited than it had assumed. But neither the tribunal, nor the Philippines has the power to enforce the ruling which China had declared at the very outset that it would not honour. There is one body which could, theoretically, legally enforce the verdict — the UN Security Council acting under Chapter VII of the UN Charter. But, as is well known, China is a veto-wielding member of the UNSC.
Officially, China has said that the maritime delimitation issue of the South China Sea should be settled through negotiation with countries directly concerned, “in accordance with international law, including UNCLOS.” Beijing is being careful not to trash UNCLOS itself, but only offering what it had on offer before — bilateral negotiations. It has also referred to its earlier offer of shelving the dispute and entering into joint development projects in the region.
But it has not said anything about the fact that the tribunal has questioned its very claim to territorial entitlements for the artificial islands that it has constructed. Neither has it commented on the tribunal’s refusal to accord the Nine Dash Line any status in international law.
The choices before China are quite stark. It can aggravate the situation by evicting the Philippines from the Scarborough Shoal and building an artificial structure on it. Or, station fighter aircraft on the artificial islands and declaring an ADIZ over the South China Sea.
A base in Scarborough Shoal would be just 185 nautical miles from Manila and at a strategic location that would be unacceptable to Washington DC. Such a posture will bring it to a dangerous edge in its relationship with the US, which is treaty-bound to support the Philippines.
China cannot easily ignore the US. Besides their trade, which tops $560 billion, and China’s holdings of $1.3 trillion US treasury securities, there is a huge government-to-government and people-to-people interaction between the two countries. A conflict over the South China Sea would be disastrous for both, as well as the international community.
Historically, countries like the US, Russia and other great powers have resisted rulings of international tribunals, but they have all, subsequently, found ways of arriving at an accommodation. The US and EU should work to manage the fallout in a manner that does not compel China to lose face, and, more important, feel that its security is in any way imperilled. Hopefully, China is looking for an honourable exit.
If it is, then quiet, behind-the-scenes diplomacy can be undertaken to moderate and then eliminate the tensions. This could be by first allowing Filipino fishermen to access Scarborough Shoal, in exchange for the Philippines withdrawing its military contingent from the Second Thomas Shoal. Second, China could freeze and then roll back its artificial island construction activity. Actually, what the verdict has done is to reduce the area of maritime claims of all the claimant states by declaring that none of the features of the Spratlys Islands are true ‘islands’ entitled to a territorial sea and a 200 nautical miles EEZ, though some could be classed as rocks visible at high tide and have a 12 nautical miles territorial sea. This is, then, an opportune moment for them to de-escalate and go in for genuine negotiations. Further, China and ASEAN could move forward in working out the long stalled Code of Conduct.
As the most powerful state among the claimants, China needs to think hard about the consequences of conflict with the US, as well as buying permanent hostility of its southeast Asian neighbours by denying them their rightful maritime claims by the use of force. It needs to think hard, too, about its reputational damage as an emerging great power.
This commentary originally appeared in Mid-day.