South China Sea’s judgement day

An important ruling is imminent on contesting claims in the South China Sea between China and the Philippines. But will it hold any water, and what is the significance?

A significant judgement is expected some time this month in the Arbitral Tribunal in The Hague under the United Nations Convention on the Law of the Sea (UNCLOS). Brought by the Philippines against China, it will be the first time that legal experts in an international court will opine on matters related to the contesting claims in the South China Sea.

Not that anyone should expect UNCLOS’s judgment, when rendered, will do much to clear things up overnight, or even in the short to medium term. Firstly, China is not offering a counter-submission and will not recognize the current process if a judgment is issued against it. Secondly, this court has no decision-making powers over territorial rights. That needs to be done through the International Court of Justice, and all the disputing parties have to agree to bring a case to this body – something that has so far proved impossible.

The main likely outcome of this current case will be to strengthen the principle that international law has a role to play in the ultimate resolution of the contesting claims. Whether Vietnam, Japan, Malaysia, Taiwan and other actors in this issue will line up with the Philippines and agree with this, let alone China, is a moot point. All of them have different agendas.  But for all of them, except China, it is in their interests to do so.

This is because, with the Philippines, they share one major bone of contention, which this judgment might clear up a little more – and that is about the now infamous nine-dash line asserted by China, which stretches almost 1,500 kms from the coast of Hainan, China’s most southerly point. This violates the principle of Exclusive Economic Zones (EEZ) allowing separate countries 200 Nautical Miles of space around their coastal regions, skirting the edges of Malaysian, Vietnamese, Philippine and, at some point, Indonesian, territory. Broadly, the Philippines is stating that the nine-dash line violates this and needs to be questioned, and, even better for them, shown to be invalid.

The most benign interpretation of the nine-dash line is that it is a hangover from an era in which maritime law was non-existent and which understanding of sovereign borders was in its infancy. The historic origin of the line comes more from the Republic of China (in charge of the Mainland up to 1949, and now based in Taiwan) rather than the People’s Republic, something that creates an extra layer of confusion. It is not even certain where the precise extent of this line is. The one thing everyone can agree on is that it lays symbolic claim to a huge territory of strategically very important waters, with trade and military routes crisscrossing it in an area that is fast becoming the world’s most dynamic economic region.

This alone means that no country involved is going to lie down and simply concede on this issue. At the moment, a complex series of claims, based on different arguments, spreads across the various features of the area. What constitutes an island has become important because of the stipulation under UNCLOS that this gives rights to extensive maritime areas around it – up to 200 nautical miles. Thus the attempts to define even features which most of the time are submerged under water as islands.  Since 2009, spats between contesting parties, some of them including the Philippines, have increased. Most of these have involved fishing or lifeguard vessels. But everyone knows they are proxy for harder, military assets. Even the United States has been increasingly sucked in, protesting neutrality but evidently keen to see China’s space pinned back and its grand claims circumscribed. More’s the pity, however, that the US is not a signatory to UNCLOS, somewhat eroding its moral authority here.

One of the most striking features of this hugely complex issue, however, is that it pits two views of the world in a head on collision. Very broadly, the Philippines are claiming that international law is dominant, and that it needs to be the common language by which to resolve all these issues. For China, however, the prime claims are historic, and these take precedence.  While not wishing to over-simplify this issue, this is the fundamental challenge for the South China Sea disputes – its contesting parties are operating in different conceptual universes and are unwilling, or unable, to speak the same language to each other. This makes resolution, as things stand at the moment, almost impossible. China is likely to simply dismiss an unfavourable judgment from The Hague this month, if it comes, as illegitimate because history, not modern law, takes precedence here.

Despite this, tactically just one legal judgment spreading a little legal light on the issues in the region would be significant. It would, ever so slightly, increase the role of law, not history or political might, as the most sustainable route to an eventual resolution of the South China Sea travails. For that reason, the Philippine move is an important one, and its outcome, beyond all the arcane details and the confusing context, potentially highly meaningful.