Consistent with superpowers past and present, China will be part of a rule-based international order but increasingly on its terms. Gavin Briggs examines what the South China Sea ruling means in practice.
Somebody had to make a decision. After three-and-a-half years, The Hague-based Permanent Court of Arbitration (the Tribunal) rendered a legally-binding Award which found China had no legal rights to historic claims within its ‘Nine-Dash Line’ in the South China Sea.
On 12 July 2016, the five-person Tribunal found in favour of the Philippines in the South China Sea Arbitration (The Republic of The Philippines V. The People’s Republic of China).
China had not participated in the arbitration process and dismissed the outcome, reiterating its long-held position that the Tribunal had no jurisdiction over the case. They levelled many accusations against the Tribunal and their decision, finding it “null and void”.
The Australian Government gave immediate support to the ruling. Foreign Minister Julie Bishop stated the decision “is binding on both parties” and that all claimants should “take this opportunity to negotiate peacefully”. Defence Minister Senator Marise Payne reiterated the decision as “final and binding”.
This issue puts Australia at odds with its number one trading partner. Conversely, compatibility remains with the United States, Australia’s single most important military alliance partner, especially in matters of regional security.
The US viewed the outcome as a favourable one for the Philippines, a regional ally with which they share strong bilateral arrangements. Washington, however, warned “all parties not to use this as an opportunity to engage in escalatory or provocative action”.
Meanwhile, Washington and Canberra have stated their willingness to continue conducting freedom of navigation operations in the South China Sea. Yet interestingly, while China is a signatory to the United Nations Convention on the Law of the Sea (UNCLOS), the US is not.
Originally an ‘Eleven-Dash Line’ was drawn up by the Chinese nationalist Kuomintang Party in 1947, and it was not until 1953 that the Communist Party of China reduced it to the present Nine-Dash Line when it removed the Gulf of Tonkin from its demarcation line. Currently, six regional governments have overlapping claims across this maritime environment. Malaysia, the Philippines, Vietnam and Taiwan also each have outposts in this disputed region, but none to the level of sophistication and scope that China has achieved across sections of this 3.5 million square kilometre area.
The Nine-Dash Line includes the Scarborough Shoal, Spratly and Paracel island groups, a region which some commentators have referred to as the ‘Iron Triangle’. For the past two decades, China has invested billions of dollars in reclamation efforts that have seen a series of submerged reefs and low-lying islands become strategically significant real estate. They have consolidated a military presence in the region, with the ambition to exploit oil and gas reserves, and further harvest its fish stocks.
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The South China Sea has steadily increased its strategic importance over several years. In 2010, China overtook the US as the world’s largest energy consumer. According to the US Energy Information Agency, China became that same year the second-largest importer and consumer of oil. It furthered its national and strategic interests by developing and increasing capabilities that protect that region’s sea lines of communication.
Since 2011, the Philippines began referring to a section of the South China Sea as the West Philippine Sea. The US soon followed suit, geographically re-naming an area which covers many disputed isles and reefs. The following year saw incidents intensify between Beijing and Manila.
In January 2013, the Philippines sought arbitration against China under Annex VII of UNCLOS. They also sought to secure access to traditional fishing rights at the Scarborough Shoal, located north of the Spratly Islands, essentially to seek “a ruling on the source of the Parties’ rights and obligations in the South China Sea and the effect of the United Nations Convention on the Law of the Sea”.
Last month’s Tribunal decision thoroughly explained itself in the 497-page ruling, and distilled it further into an eleven-page press release. One of many important statements made by the Tribunal was that China had made historic use of the islands in the South China Sea, but “there was no evidence that China had historically exercised exclusive control over the waters or their resources”.
The Tribunal also found that geographical features that are above the high-tide mark can be considered to generate a 12 nautical mile territorial sea. Anything below high-tide excludes the same entitlement. So what of those features which have been heavily modified through extensive reclamation? Well, the Tribunal “recalled that the Convention classifies features on the basis of their natural condition.”
However, while legally binding, the decision is not enforceable. The role of diplomacy therefore retains both value and importance for this issue, promoting the participation and adherence of all parties to abide by the norms and laws of the international system.
Yet without being too flippant, possession is often nine-tenths of the law. Despite appeals from the international community and rulings by civil society institutions, China will provide a counter-narrative that consolidates its historic claims within the Nine-Dash Line. Economic and military strength united by a long-term national strategy will allow China to project force far from its mainland territory.
China has demonstrated a willingness to engage in diplomacy and multilateral approaches on this issue. The 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea is one example. While that was a non-binding agreement, it showed regionalism and diplomacy play a significant role in reducing tensions in the region.
In August, China will host the G-20 Leaders Summit in Hangzhou and this will be another important opportunity to showcase its willingness and ability to be a global leader.
As the world’s second largest economy, China will be part of a rule-based international order but increasingly on its terms, as has been the behaviour of superpowers past and present.
Is “possession often nine-tenths of the law,” or is “possession often ten tenths the position of a scofflaw?”