The Diminishing Returns of Ambiguity in the South China Sea

By Ryan Santicola

November 03, 2015

http://thediplomat.com/2015/11/the-diminishing-returns-of-ambiguity-in-the-south-china-sea/

Last Friday, the Permanent Court of Arbitration (PCA)ruled that it has jurisdiction over the Philippines’ submission challenging a number of China’s claims in the South China Sea. This judgment is not only procedurally significant, it is also substantively important because it arguably undercuts an important strategic pillar of China’s approach to the disputes in the South China Sea – ambiguity. In this sense, the jurisdictional judgment could have political implications far broader than the arbitration itself.

Ambiguity, as a number of commentators have observed, has long been a key feature of China’s approach to the ongoing disputes in the South China Sea. So central is ambiguity in China’s claims that one scholar describedthe claims as “unambiguously ambiguous.” This “strategic ambiguity,” which was effectively explained last week by Graham Webster in The Diplomat, ostensibly shelters China from both the political and legal ramifications of its territorial and maritime claims in the region. But the benefits of ambiguity appear to be shrinking rapidly. Politically, China’s current approach has not yielded regional stability, with claimant states growing increasingly frustrated with China’s approach in the South China Sea. Meanwhile, legally, last week’s PCA judgment demonstrates that China’s ambiguity will not function as an effective defense to compulsory dispute resolution.

The relevance of the judgment in this regard is tied to an important jurisdictional prerequisite for dispute resolution under the United Nations Convention on the Law of the Sea (UNCLOS), specifically that there must be a dispute concerning the interpretation and application of UNCLOS. Thus, a critical threshold consideration for the tribunal was whether an actual UNCLOS-related dispute existed. In last year’s position paper, China argued that the Philippines’ submission did not concern UNCLOS because it related to sovereignty, a matter outside the scope of UNCLOS, and maritime delimitation, a matter for which China had declared an exception from compulsory dispute resolution. This argument was noted by the PCA, but ultimately rejected.

In finding an UNCLOS dispute to exist, the tribunal considered a series of diplomatic exchanges between the two countries. These exchanges followed China’s May 7, 2009, Notes Verbale in which it claimed “indisputable sovereignty over the islands in the South China Sea and the adjacent waters” and included a Chinese map depicting the “nine-dash line.” (It is worth noting that the PCA described this map as reflecting a “seemingly expansive claim to maritime entitlements.”) In the tribunal’s judgment, the diplomatic exchanges since 2009 demonstrated that an actual dispute over the source of maritime entitlements, as opposed to sovereignty, does exist between the Philippines and China, notwithstanding the absence of a definitive explanation from China regarding the nature and extent of its maritime claims in the South China Sea.

In fact, the PCA noted China’s pattern of ambiguous claims and stated that “[t]he existence of a dispute over these issues is not diminished by the fact that China has not clarified the meaning of the nine-dash line or elaborated on its claim to historic rights.” Similarly, and importantly for the future of China’s “strategic ambiguity,” the PCA indicated that it would not permit “deliberate ambiguity in a Party’s expression of its position to frustrate the resolution of a genuine dispute through arbitration.” In other words, China’s ambiguity in the South China Sea will not shield it from compulsory dispute resolution either in the case of the Philippines or in the future should other regional actors pursue a similar course.

Interestingly, with the PCA asserting jurisdiction, China’s strategic interests now may more closely align with those of its regional neighbors. The tribunal noted that “China has not elaborated on certain significant aspects of its claimed rights and entitlements in the South China Sea.” As a result, in considering the jurisdiction issue, the PCA relied upon political statements and representations to infer the Chinese position. While such inferences may accurately reflect Chinese positions, China’s own interests may be better served by an explication of its claims irrespective of its non-participation in the arbitral proceeding.

To be sure, China does not hold a monopoly on ambiguous claims in the South China Sea, but its ambiguous claims are the most controversial and, currently, they happen to be the subject of compulsory dispute resolution. Not only has China’s ambiguity failed to achieve favorable political results, arguably fueling anxiety and increasing the “tensions and risks” in the region, but the PCA judgment highlights that this approach is similarly ineffective at sheltering it from formal resolution of the maritime claims at issue. With jurisdiction now asserted, clarification of its claims would serve both China’s and the region’s interests.

Ryan Santicola is a judge advocate in the U.S. Navy. The views expressed in this article are the author’s own and do not necessarily reflect those of the U.S. Government, the Department of Defense, or the Department of the Navy.