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.
protest in Vietnam yesterday after China rejected a UN tribunal’s
ruling that dimssed the country’s territorial claim to much of the South
China Sea. Pic/AFP
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
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 nm 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 $1.3tn 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
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 200nm EEZ, though some
could be classed as rocks visible at high tide and have a 12nm
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 South-east 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.
Mid-Day July 19 2016