By Truong-Minh Vu and Trang Pham
August 28, 2015
China’s military might, economic power, and cultural sway might be enough to make the country a great power. Yet these resources are not sufficient to help Beijing achieve its political and strategic goals through coercion or going it alone. In military terms, China is still behind America. Economically, its power is reliant on other states, especially with neighboring countries.
China’s paradox, therefore, is that while its rising capabilities may seem to afford it the opportunity to pursue alternatives to the existing rules, its reputation and credibility are insufficient to establish new rules altogether which can be widely accepted by its Asian neighbors. Chinese approaches to international institutions and rule of law in the South China Sea, especially with respect to the arbitration case initiated by the Philippines, is one of the most significant examples supporting this argument.
Since the 1986 International Court of Justice case brought by Nicaragua against the United States, the world went more than 25 years without one party refusing to participate in international legal proceedings. Then came the Arctic Sunrise case, with Russia refusing to appear in proceedings in 2013. That same year, the world witnessed another similar case with respect to the South China Sea when Beijing expressed its disinterest in appearing before the Permanent Court of Arbitration at The Hague.
After a series of failed negotiations with China concerning the disputes in the South China Sea, the Philippines decided to employ the Arbitral tribunal under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) to challenge China’s claims. China refused to join the arbitration case and warned that the Philippines’ approach could damage the bilateral relationship.
Despites China’s rejection, the arbitration court is still carrying out the procedures. In response to the first procedural order by the Arbitration dated August 17, 2013, Philippines submitted the Memorial on March 30, 2014. In its second procedural order, the tribunal issued a note fixing December 15, 2014 as the deadline for China to submit its counter-memorial.
Nong Hong, the head of the Institute for China-America Studies (ICAS), argued that the complexity and nature of the disputes in South China Sea remain unchanged and the arbitration case is just a political game of international law. Another Chinese scholar suggested that no matter what the outcomes of the case are, the Philippines would lose rather than win. Due to the power asymmetry between these two countries, the Philippines is likely to launch a risky game which may come back to bite Manila.
Those arguments reveal the well-recognized drawbacks of UNCLOS as well as the inconvenient truth in international politics concerning the outsized role of great powers and their disproportionate impact relative to smaller states. But they also focus on just one aspect of the South China Sea case. Indeed, beyond the specific outcomes of the case, its very occurrence could change the perceptions of the international community on the South China Sea disputes more generally. If this were to occur, China, not the Philippines would be the loser.
There is an assumption that the disputes in the South China Sea cannot be settled unless the issues concerning sovereignty over the islands and maritime delimitation are solved. This is not quite correct. In fact, the disputes there can be divided into groups entailing different legal claims, which can then be settled separately. The most highly contested disputes in the South China Sea concern maritime features. These disputes center on the sovereignty of those features and their legal status. While the former fall out of the scope of compulsory settlement procedure in Part XV of UNCLOS, the latter can legally be brought to any appropriate court or tribunal by any one of the parties in the dispute.
The second dispute is related to maritime delimitation. China is the only state in the South China Sea which excludes this matter from any judicial jurisdiction. The last set of disputes is related to the well-protected subjects of the Law of the Sea, which are maritime environment protection and freedom of navigation. There are also issues surrounding the legality of the so-called nine-dash line map and “historic rights,” which relate to China in particular.
The arbitration case between the Philippines and China cannot settle all of these disputes, nor will it since the Philippines has not asked the PCA to do so. The arbitral tribunal, if it determines it has jurisdiction, will then move on to address the issues of the legal basis of China’s nine-dash line map and historic rights in South China Sea under international law, the legal status of maritime features and whether activities of China damaged the regional marine environment in the region. Those issues are the essential components of the South China Sea disputes, since the vagueness underlying them arguably only increases the tension in the disputed area.
The interpretation of article 121, which explains the legal definitions of “islands” and “rocks,” is the prime example of such ambiguity. According to Professor Erik Franckx, there has always been difficulty in getting exact clarity on this article, since the language used enables each party to have their own understanding. In their previous law of the sea cases, the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS) have also found their own way to not directly comment on this issue, with the Black Sea case and the case between Bangladesh and Myanmar being recent examples.
The South China Sea arbitration case is the first time a state party has directly asked an international tribunal to decide on this problem. The decision of the PCA on the case will not only potentially help reduce the complexity of the current disputes and perhaps consequently dampen regional tensions, it also contributes to the development of international law. Given this, it would be a mistake to underestimate the legal importance of this case.
The Philippines’ arbitration case against China could also confer several benefits to other ASEAN claimants seeking solutions of their own to the South China Sea disputes in several ways. First, the case will force China and the Philippines to explain their interpretation and application of UNCLOS 1982. Although China refused to take part in the tribunal as mentioned above, it still has to clarify its U-shaped claim. Understanding China’s interpretation would give other claimants a big advantage in the legal struggle against Beijing’s arguments. In addition, not only China but the Philippines will also have to make its position clear concerning the interpretation of Article 121, Paragraph 3 of UNCLOS 1982 on the regime of islands and how it applies to disputed features in the Spratly Islands.
Second, if the PCA decides that the nine-dash line map of China has no legal basis whatsoever under international law, Beijing will lose one of the arguments for its highly controversial activities in the South China Sea, such as (but not limited to) artificial island building. In addition, if the court decides that the maritime features listed in the Philippines’ case cannot generate either 200 nautical miles of sovereignty rights or a continental shelf, the disputed area in the South China Sea will be significantly reduced. That would arguably make it easier to solve the maritime delimitation problem in the region.
Third, although China is not obligated to appear in court, she cannot escape the fact that she is still a party to the case. That means that the court’s decision remains fully and ultimately binding on her. Indeed, China’s signing and ratifying of UNCLOS implies its granting consent “in advance” to the judicial exercise by the court or tribunal concerned. In other words, China has already accepted the fact that another State could unilaterally bring a dispute against her under the compulsory mechanism provided in Part XV of UNCLOS. Hence, the grounds for China to challenge the jurisdiction of the court or tribunal based on the principle of state consent cannot be justified.
What are the consequences of China’s approach to the Philippines’ South China Sea case? The real impacts will arguably be felt not in 2015 or even 2016, but in the next five or ten years in the future when the time comes for China to settle all of its disputes with its neighbors. China’s interactions with its neighbor countries have been increasing in both depth and scope, and disputes of all kinds may happen at any time. Given this, it would seem counterproductive for China to underestimate — or actively undermine — international law, because legal mechanisms may be the safest and wisest course Beijing can take to protect its lawful rights and interests in Asia and the world. Seen in this light, China’s failure to appear in this case could have negative impacts not only in the South China Sea but also in other areas. Other countries may also adopt the same attitude toward Beijing in cases that it initiates in the future, to cite just one example.
Lest observers get carried away, it is worth emphasizing again that after the South China Sea case, disputes concerning sovereignty and maritime delimitation in the area will still remain unsettled. Furthermore, China can simply choose not to comply with the court’s decision. Chinese political elites may decide that the country either does not want to be constrained by existing international laws or would like to change established rules as a rising power.
This would be unwise. China’s decision to ignore international law risks upsetting her peaceful rise, which could bring about reputational risks and financial problems. Consider how China’s attitude would look to member states that are part of the new Asian Infrastructure Investment Bank (AIIB) or the One Belt, One Road initiative. These countries would have reason to be concerned about the how these institutions would be governed since China, despite being a party to international agreements, is attempting to weasel its way out of any compulsory dispute settlement mechanism. That suggests that laws and institutions in China’s eyes are merely a tool to obtain power, rather than an instrument to peacefully manage conflicts of interest between states.
A new regional order is emerging as a result of power shifts in the Asia-Pacific. Chinese policymakers think that the country, given its thousands of years of wisdom in dealing with neighboring states, can successfully manage asymmetric relationships with lesser states in the region. But the South China Sea has illustrated the limits of such an approach. While countries in Asia and the world are growing more economically dependent on Beijing, China’s growing assertiveness — which includes its disregard for international law — has led the international community to view it with suspicion.
If China continues on its current path, it may achieve its short term interests but it will also exacerbate trends that are already working to its disadvantage in Asia’s strategic environment. And the South China Sea arbitration case may yet prove to be a vivid demonstration of how international law can shape and constrain the choices of a rising power, rather than the other way around as some Chinese thinkers would lead us to believe.
Truong-Minh Vu (PhD) is the Director for the Center for International Studies (SCIS) at the University of Social Sciences and Humanities in Ho Chi Minh City. He is co-editor of the book Power Politics in Asia’s Contested Waters – Territorial Disputes in the South China Sea (Springer, forthcoming in 2015).
Trang Pham (LLM) is a Lecturer at International Relations Faculty at the University of Social Sciences and Humanities in Ho Chi Minh City. She is also one of the former Nippon Research fellows at the International Tribunal for Law of the Sea (ITLOS), Hamburg, Germany.
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