Commentary

Arbitration in the South China Sea: Between the Rocks and a Hard Case

in Program

By Zach Dubel – With tensions long remaining high in the South China Sea, the Philippines has fast been running out of options for responding in a meaningful way to China’s growing control over the South China Sea. China’s growing power and the increasingly assertive way it has exercised it has posed a dilemma for the Philippines. The most recent quarrel began last April when a Philippine Navy patrol attempted to arrest Chinese fishermen accused of illegally fishing endangered species at the rich fishing grounds of Scarborough Shoal, a large and shallow atoll near the Philippines. While this sort of confrontation has happened before, the Chinese response was much stronger than in the past. Ten months later, the Philippines has been largely forced out of the shoal by Chinese law enforcement and maritime surveillance vessels.

The Philippines, where many people rely at least in part on small scale fishing for their livelihood, has struggled to find an answer to the combination of Chinese insistence and power. The government is under pressure not only from China but also by Filipino nationalist sentiment to protect the country’s interests, and have simultaneously employed parallel strategies of hedging against China with the United States and Japan, political and diplomatic engagement with China, and utilizing international law. On January 22 the Philippines notified China that it intended to bring the case to arbitration under the UN Convention of the Law of the Sea (UNCLOS), which both states have signed. Though the Philippines has suggested this idea before, China has refused this route and instead promotes bilateral negotiations as the only way to resolve the conflicting claims.

The case that the Philippines has brought to arbitration does not seek a ruling on who holds sovereignty over the islands and rocks of the South China Sea. Rather, the Philippines is hoping to firmly establish the legal status of those land features, and more importantly the type of maritime areas they can generate. They also seek to have the tribunal publically declare that China’s so-called “Nine-Dashed Line” is out of step with the provisions of UNCLOS. Created as a historical claim in the 1940s by the Kuomintang before their ouster from the mainland, China has intentionally kept the precise meaning of this line ambiguous over the years, leading some to hope that China was simply claiming the land features. However, recent actions over the past several years indicate that the Chinese government is claiming total sovereignty over the vast majority of the South China Sea’s waters as well, a maritime area far greater than UNCLOS could possibly permit.

If, as the Philippines hopes, the tribunal decides that the land features in the South China Sea are largely “rocks” or submerged features under UNCLOS rather than islands, their maritime space would be limited to a relatively small territorial sea. Such a ruling would mean that even if Chinese sovereignty was indisputably established over all land features in the South China Sea, it would not have a credible claim to all the waters of most of the South China Sea, and the waters surrounding Scarborough Shoal and hydrocarbon-rich Reed Bank near the Philippines in particular.

This is not a risk free endeavor by the Philippines, however. Chinese participation is not necessary for the process to continue, but it also doesn’t mean that China must abide by its ruling. It remains to be seen whether or not China would voluntarily submit to a decision against them, but past action and the very nature of the nine-dashed line as an implicit challenge to UNCLOS marks this as rather unlikely. A positive ruling for the Philippines would give Manila the legal high ground and probably also strengthen the resolve of other claimants in the South China Sea, but would ultimately be a symbolic victory for the time being.

What is perhaps more likely is that China may not let this go without a response. The history of the South China Sea is a seemingly never-ending series of tit-for-tat exchanges between claimants catering to nationalist sentiment and provocation, and there hasn’t been much to suggest this time will be different. China has not shied from leveraging its economic weight as a punitive measure in the past, a technique the Philippines has already once during the Scarborough Shoal standoff. Two of the Chinese government’s most significant concerns, namely domestic legitimacy and energy security, are deeply tied to its future in the South China Sea, and if it feels either of those are threatened then it may use those or other countermeasures again.

Still, they have not left the Philippines with many other options. Beijing seems set on a slow and steady increase in its de facto control of important areas of the South China Sea and Manila lack the capacity to challenge that materially. Arguably, a commercial agreement based on setting aside claims for the time being seems like the best way to arrive at a mutually beneficial arrangement on utilizing the South China Sea’s resources. Philippine energy company Philex has engaged in talks with the China National Offshore Oil Corporation (CNOOC) to do that in Reed Bank for some time. However, the arbitration process will likely interfere with these joint-venture negotiations, both by provoking China and by reinforcing the Filipino nationalists’ belief that international law is on their side. That Manila has filed it now suggests that the government harbors little hope of reaching an acceptable agreement with China on joint development any time soon, and they are under intense pressure to act now.

The US government, for its part, must walk a delicate tightrope in its long-term response to this. The US  is likely to support the Philippines in initiating the arbitration process and the rule of law in order to counter any suspicions of weakening US commitment to its allies, but has carefully avoided explicitly supporting the Philippine claim. Any successful resolution of the South China Sea ultimately requires Chinese participation, so a US action that antagonizes or reinforces China’s perception of a US containment strategy would probably be counterproductive to its goal of resolution of regional disputes without resort to violence. 

Photo credit:Maximontero via Wikimedia Commons

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