South China Sea’s judgement day

Ruling on dispute between China and the Philippines will be meaningful, even if it doesn’t quickly lead to resolution

Kerry Brown

Government and governance, International relations, Law | Australia, Asia, East Asia, South Asia, Southeast Asia, The Pacific, The World

16 July 2015

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.

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55 Responses

  1. alfin laya says:

    incisive and instructive. thank you

  2. ted penaflor says:

    I believe the law is on the side of the Philippines as against the conjured 9-dash line of China. But do I believe that a smaller and much weaker nation can put up with a giant country like China? I still trust in the possibility of the impossible. This was proven in the biblical times of David and Goliath, much recently the saga of the war of Vietnam with the United States. But since there is now a UN body which resolves issues affecting the community of nations like the International Tribunal on the Law of the Seas (ITLOS) every self-respecting nation has the obligation and the duty to show that it adheres on the rule of law promulgated by the UN bodies like ITLOS. China may choose to nonchalantly ignore the rulings that ITLOS will issue in connection with the suit the Philippines had filed against China, which we hope would be favorable on the Philippine side, but it risks incurring the world condemnation and its damaging consequences. As a responsible world power that it wants to project China’s only choice is to abide with the ruling be it unfavorable to it.

  3. Elias Patriarca says:

    privileged to read an academically deep but simplified explication.

  4. Reynaldo Santos says:

    In a civilized world, any conflict or dispute between countries must be resolved in accordance with the norms of international law and not by political or military might and this is the righteous and moral path. If the international tribunal will rule in favor of the Philippines it will be significant even though the tribunal has no police power to implement the ruling but the world opinion will certainly be against China because it does not uphold UNCLOS of which it was a signatory.

  5. madel says:

    The issue of Spratly islands is a simple analogy .if China claim it under historical basis the Philippines is not yet existing as a country and therefore the owner of Spratly islands is the Sultanate of Sulu who ruled the whole archipelago under the same historic Sulu archipelago islands as far as Taiwan and North Borneo dates back in 1200 where China empire acknowledge the whole Sultanate empire under a frienship treaty with the Sultan.

    • alshady says:

      excellent historical point thanks. In fact the S of Sulu still lays claim to Sabah in N Borneo and as recent as 2013 sent troops to unsuccessfully reclaim it, but I digress, it’s not really about territory either, it’s about undersea oil and gas?

    • Pu Tang Na says:

      you’re right

  6. Jesus Agoncillo says:

    The decision by the international tribunal will at least help in solving the issue. The fight is not equal in terms of size and economic power. The Philippines is at a disadvantage. China’s reclamation of some of the islands signal reckless decision and aggression. It is an economic power, no doubt about it but being a military power and a bully are different.

    The other claimants should at least thank the Philippines for standing up and be not afraid of China’s economic retaliation. I do not believe that every rule must be based on history. or political might. We have the United Nations and role of law must be enforced and upheld.

  7. Samotus says:

    Nine – dash line asserted by China in the South China Sea stretching 1500 km from the coast of this country is obvious violation of international law and obvious act of aggression against islandic countries stretching on eastern shores of the sea, but also is an action against common sense, just crude act of non-sense show of political activity. It would be more profitable for China to participate in exploration of possible sources of oil and gas under the bed of the sea with all countries interested. Higher export of equipment in machinery repaid in hydrocarbons would augment Chinese industrial production. Show of disrespect for proper behave means that Chinese political elite is facing serious internal crises of their export driven economy which needs redirection towards internal demand but instead they have chosen Russian Putin way to confront outside world on which demand their country depends.

  8. olan says:

    If Philippine wins and china does not recognize the ruling, china will be islolated and maybe branded as rough state.

  9. Elman Gonzales says:

    If history, as china insist, is the basis for them to claim all of the South china sea, then Greece on the other hand has also the right to claim back most of Turkey’s lands because everywhere you go in Turkey are Greek cities and towns in the ancient times, and evidence of it are now great tourists attraction in Turkey itself, conquered by the Ottomans Empire. The same same with other places in the world as well. You cannot claim a place as your just because you see a piece of some broken chinese pottery.

    • Heneroso says:

      Olan, you’re right. The claims between parties can not be resolved by force, ONLY, china is testing/ making experimental strategy, whether no body is picking up and if successful, she will send a message to the world her power to control the world. YET, china is showing force to nations like Philippine et al which is minute countries for them to bully. The resultant of this geometric concern is ,,china will be left behind by in the rest of ASEAN and the rest of EU. UN currently not living by way of historical basis, But, we continue to live in unison with ASEAN. China interest is by her own will, undermining small countries like Philippines. China is swimming in the dark. So sad for them for their greed.

  10. Ben says:

    China’s claims are all based on historical inference not evidence. Whatever the result is, International Law must be still be upheld.

  11. jun gee says:

    If UNCLOS favors the Philippines but China ignores it, China will most likely suffer economically. If not at all, nations may start considering trading less with China because they know for a fact that as long as it becomes richer, it will just continue to arm itself. If China believes that it is right and that it is the victim and the Philippines is the one abusing, it should sue the latter in the International Court of Justice. But it is obvious that it cannot present even a valid historical proof showing that it owns the South China Sea.

  12. Ronald says:

    While not from the region it seems hard for me to see how anyone from outside the region could have any say. Would Spain accept Chinese views on its retention of land on the African side of the Gibraltar straight? There are many other similar examples

  13. romi says:

    China simply will not honor any decision by Arbitral Tribunal having rejected participation in the court proceedings knowing their claim of the nine-dash line holds no water.

  14. Trixie says:

    Sbould china be friendly to other countries? simple why, they need seafood. Did you heard that Argentine fired out the chinese fishing vessel? When I looked at the map, I saw Argentine is belong to South America, what they did to small countries Argentine did it to that chinese fishing ship. It came to my mind, they want seafoods, that is why they claim and bully small countries that went fishing to their so called “territory”.

  15. Stephen Ortega says:

    It is an interesting comment “will it hold water”? When one or both protagonists reject and failed to obey the decision what could be the consequence? The Philippines certainly would abide by what ever is the verdict. It is China who have proclaimed their opposition to the Arbitral Tribunal in the Hague (UNCLOS) and insisted that a bilateral talk is better. This amids the continuous explorations and brazen build up of structures in the contested area. Should this happens, either the UN commits to give sanctions even to one of its permanent member or just get rid of any arbitration because they could not guarantee its implementation.

  16. Monte Cristo says:

    China is a modern day aggressor. It’s expansionism policy is part of its imperial dream to rule Southeast Asia in a bid to control maritime resources to feed its growing population. The world is at risk, unless China’s dream of Pan-Asia domination is nipped in the bud…

  17. Henry Bloom says:

    hmmm…its ridiculous since actually most of upstairs didnt know the ture content of china’s claims but sitll take it for granted as “no evidence”. i think its better to acknowledge more before directly making an omnipotent judgement as if you are GOD.

  18. JUN says:

    For me it is simple. What is the use of International Law if it not be followed?
    International Law will lose reputation of his existence, since it can’t be followed by other country. I’m not favor of any war, but if CHINA disrespect the UNCLOS, I don’t see any reason to respect them. If International Law non-existing, then how the 2 countries resolve their issue in territories? By inflecting each force, the stronger force you had, the righteous you are. This is funny and something to worry.

  19. toto says:

    If China will not comply with the ruling if it will go against their favor and then UN will not do something about it. It will set a precedent that it’s OK for a country not to heed to the ruling of an international body. It will be more chaotic in the future. Economic sanctions should be pressed just like what the UN did to North Korea.

    China will have more to lose than to gain if they will not accept the UNCLOS ruling.

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