Washington refused to honour the 1986 award, citing Managua’s selective application of the law, the highly charged political nature of the case and the ICJ’s overreach in asserting jurisdiction. Later that year, it cast the sole veto against a UN Security Council draft resolution calling for full and immediate compliance with the judgment. China was one of 11 states on the Council to vote in favour.
Beijing now restates each of the accusations made by the defence that day. Yet one hopes that it will set a better example of compliance than Washington. It is also in its enlightened self-interest to do so.
China’s emerging policy approach is one of non-acceptance of the award while supporting escalation control on the ground. This is coupled with an offer to negotiate with the Philippines. The political cost–benefit calculus underlying this policy will gradually but decisively shift against China with each passing month — especially as Manila forces the issue in order to collect the benefits conferred by the award.
Hanoi too stands poised to force claims that it enjoys traditional fishing rights within the territorial sea of the Paracel Islands. It can also claim, pointing to the award, that none of the high-tide features there are fully entitled islands, and that, as a result, the features cannot generate their own exclusive economic zones (EEZs).
China’s favoured ‘dual-track’ approach holds that disputes should be resolved through talks between directly concerned parties, while China and ASEAN countries should jointly pursue stability in the South China Sea. In light of the ruling, China must discreetly implement an ‘early harvest’ set of compliant actions within this ‘dual-track’ framework. These could include allowing re-entry of Filipino traditional fishermen to the territorial sea of the Scarborough Shoal and China withdrawing its paramilitary presence from the Second Thomas Shoal area.
Beijing should also seize this opportunity to clarify the geographic limits of its ‘relevant waters’ claim in the South China Sea and the functional nature of the ‘historic right’ of access that it seeks in these waters.
ASEAN too must brace for the implications of the award, particularly on the security front. The decision to annul all extended maritime claims associated with China’s land features on the Philippines’ continental shelf is effectively an endorsement of a 2009 submission filed by Malaysia and Vietnam to the Commission on the Limits of the Continental Shelf. That submission also implied that none of the features in the Spratlys group were capable of generating EEZs or continental shelf rights.
That filing took China by surprise and touched off a protest note featuring the nine-dash line. The Tribunal’s ruling will encounter a similar, if not greater show of resolve by Beijing, both on the table and at sea.
Sovereignty-linked issues of jurisdiction have always been tied to a larger political calculus of stability and good neighbourliness. China’s rulers have not been shy in calibrating their stance between a hardline and a flexible one to suit the strategic circumstances at hand. Should Philippine ‘armed forces’ or ‘public vessels’ provide escort to private efforts to restart oil and gas development on its continental shelf, the United States could be drawn into the line of fire. This would have cascading implications for peace and stability in the South China Sea.
The Tribunal’s award brings into question the call to expeditiously conclude a China–ASEAN ‘Code of Conduct’ (COC). The area of application of the COC’s rules was premised on the existence of unresolved maritime boundary areas of concerned parties in the South China Sea. Having produced a de facto delimitation of the China–Philippines maritime boundary (and furnished principles for the China–Vietnam one too), the Tribunal has effectively undercut the raison d’être that sustains the envisaged code.
Both ASEAN and China would be better off reframing their COC interactions to a trimmed-down dialogue on preventive mechanisms that set and stabilise the rules of engagement and communication for their paramilitaries. Such a code could be framed along the lines of the multinational Code for Unplanned Encounters at Sea.
The scope for functional cooperation in the South China Sea has been set back in no uncertain terms. Had Itu Aba been ruled a fully entitled island, it could have facilitated a basis for oil and gas joint development in the overlapping water areas. With no geographic overlap to contend with, China’s principle of ‘shelving differences and seeking joint development’ has become a hollow slogan. There are no differences of entitled rights left to shelve.
The contours of functional cooperation will need to evolve from bilateral actions to subregional activities in cross-cutting areas. Such activities could include environmental protection, maritime search and rescue, and cooperation against piracy and transnational crime.
The arbitration has ripped apart the deliberate ambiguity that has at times helpfully spurred the search for win–win solutions to the region’s overlapping challenges at its peripheries. Yet another Asian frontier has now been transformed, to quote Lord Curzon, into a ‘razor’s edge on which hang suspended the modern issues of war or peace’. The tenuous quiet in the immediate wake of the award will not last.
As China and ASEAN gingerly mould a ‘new normal’ in the South China Sea, they stand at an important crossroads. They can either advocate for exclusivist answers to the challenges in their designated maritime zones — the littoral states’ preference. Or they can throw their weight behind comprehensive and overarching cooperative frameworks — China’s preference — that secure peace and stability. Whatever their chosen path, China and ASEAN must first form an important consensus on this point. Papering over this choice will be harder than papering over the language in their summit communiques. Muddling through is not an option.
Sourabh Gupta is a Senior Fellow at the Institute for China–America Studies (ICAS) in Washington, DC.
‘The scope for functional cooperation in the South China Sea has been set back in no uncertain terms. Had Itu Aba been ruled a fully entitled island, it could have facilitated a basis for oil and gas joint development in the overlapping water areas. With no geographic overlap to contend with, China’s principle of ‘shelving differences and seeking joint development’ has become a hollow slogan. There are no differences of entitled rights left to shelve.
This is a nonpoint that sounds reasonable only because its rhetoric is so ringing. Really, it still is very possible to negotiate. It just means negotiating with whatever nation’s EEZ Itu Aba sits in. But China’s expansionism means that it has rendered all negotiations except total surrender moot.
Had Itu Aba been ruled an island, it would have hugely complicated things. What if China had used the island to declare an EEZ even though the ROC controls it, arguing that Taiwan is part of China? The Phils position that declaring Itu Aba an island was a threat to peace was correct.
We can have peace in the SCS any time. All China has to do is give up its expansionism there. Since it won’t, we are headed toward some kind of war there.
Michael Turton
“Had Itu Aba been ruled an island, it would have hugely complicated things. What if China had used the island to declare an EEZ even though the ROC controls it, arguing that Taiwan is part of China? The Philippines position that declaring Itu Aba an island was a threat to peace was correct.” So the arbitration’s ruling was a political move rather than a “scientific” definition of what is an island?
The eminent author of this post writes of Southeast Asian claimants to various zones in the South China Sea:
“Or they can throw their weight behind comprehensive and overarching cooperative frameworks — China’s preference”.
One of Indonesia’s most distinguished former ambassadors, Hasjim Djalal, drew the following conclusion over twenty years ago: “It appears that what China means by joint development is that China would like to develop, jointly and bilaterally, with the other claimants concerned the resources of the South China Sea in the areas claimed by states other than China”.(quoted in Bill Hayton, The South China Sea, p258. I have slightly altered the wording.)
Has anything changed since then?
Another interesting analysis by the writer.
But China and Asean are no more at the cross-road. They crossed the Rubicon on 26 July when they issued a joint statement in Vientiane that they will “resolve the territorial and jurisdictional disputes by peaceful means”.
Significantly, there was not even a squeak on the arbitration case.
Just like the Yukos v Russia ruling by another ad hoc tribunal at the PCA in 2014, which awarded shareholders of the bankrupt oil company with a scandalous US$50 billion of compensation and which was subsequently quashed by a Dutch court, the 12 July ruling will be relegated to scrap heap of history.
President Duterte has appointed an envoy to start talks with China and will not ‘flaunt’ the ruling.
The writer’s prediction that “Neither Beijing nor Manila will walk away dejected in 2016” is coming true.
http://www.eastasiaforum.org/2015/11/16/what-the-philippines-china-arbitration-ruling-means-for-the-south-china-sea/
China and ASEAN are now committed to the implementation of the DOC in the South China Sea, which was signed in 2002, after a decade of negotiation but was sidelined as a political document.
They also agree to work towards an early adoption of a Code of Conduct, based on consensus.
In case the nuance escapes anyone, China and Asean are tied together by an economic umbilical cord, as China is the biggest trading partner of Asean.
If China falters, Asean nations will plunge into a rolling recession for decades to come.
Imagine what will happen to the Philippines, arguably the poorest nation in Asean, if its US$25 billion combined trade with China evaporates with the onset of a war, under Uncle Sam’s tutelage. Duterte is too smart to fall into the trap.
The stakeholders have come to the inevitable conclusion that they will not allow the so-called Obama’s infamous pivot to the Asia-Pacific (to contain China’s rise) to divide and rule and in the process, as an unintended collateral damage, derail economic cooperation between China and Asean.
They will all participate and create enormous wealth from the inclusive multi-trillion dollar OBOR projects, initiated by China to make Eurasia into the next region of greatest wealth creation vis-a-vis the “Italian Renaissance”.
War, which is Uncle Sam’s main ‘export’, is the last thing on their collective minds.
Relatively unmentioned in the discussions of the China Sea dispute is the effect of global warming and coal burning by SE Asia countries.
In and of itself, the nations of SE Asia burn enough coal to cause unsustainable levels of global warning. Unfortunately several of them lack the resources necessary to substitute carbon neutral energy sources. This means that, to avoid a global ecological “meltdown” some outside entity must provide the determination and resources necessary to make the conversion.
This means that control of the region is a survival issue for China. Eventually China will make clear that its region of the planet will do what is necessary to reguce CO2 emissions. Insofar as the US tries to oppose this, it will meet with pushback – as strong as becomes necessary to communicate the message.