Trial of the Century: Philippines vs. China in the South China Sea

2016-06-23-1466653456-4504861-1.b.jpg

In the coming days, an obscure arbitral tribunal, constituted under the auspices of the United Nations Convention on the Law of the Sea (UNCLOS), is expected to issue a final ruling on the Philippines' complaint against China's expanding military and civilian footprint across the world's most important waterway, the South China Sea. As I argue in my latest book, Asia's New Battlefield, the next great power clash will most likely happen in this highly strategic maritime route.

Let's put things into perspective. In the last two years, China has reclaimed 3,200 acres (1,295 hectares) of land to build gigantic artificial islands across the Spratly chain of islands, giving birth to a sprawling network of civilian and military installations across the disputed waters. Singlehandedly, China in recent years has reclaimed almost two dozen times more than all other claimant states combined in the past half-century. And nothing compares to China's futuristic and highly sophisticated artificially-built islands in the high seas.

China is even more dominant in other portions of the disputed waters. Its control of the Paracel chain of islands is a fait accompli, while the Pratas chain of islands are under the administration of what Beijing considers a renegade province, Taiwan, which will likely be eventually reincorporated into a Greater China. There are reports that China may soon also establish military facilities on the Scarborough Shoal, which lies just 200 kilometers away from Philippine shores but a whopping 900 kilometers away from nearest Chinese coastline. There are concerns that China may soon establish an exclusion zone in the area.

The sheer scale, speech and technological sophistication of China's reclamation activities; the ever-larger deployment of Chinese fishermen-cum-militia forces, stationing of advanced military hardware like high-frequency radars and surface-to-air-missile systems; the augmentation of Chinese coast guard, submarine and naval presence in the area; not to mention an uptick in Chinese aerial interception of foreign reconnaissance aircrafts in the South China Sea -- they all underscore Beijing's intent on dominating what it describes as its blue "national soil."

Soon, China may be in a position to establish an "exclusion zone" in the area, imperiling freedom of overflight and navigation for regional and external military forces.

Four centuries after the publication of British jurist John Selden's The Closed Sea, or Mare Clausum, which argued for exclusive sovereign control of international waters, Beijing is inching closer to transforming the South China Sea -- which handles up to a third of global maritime commerce, four times as much energy transport as the Suez canal and more than a tenth of global fisheries stock -- into what some would call a virtual Chinese lake.

"The Sea, by the Law of Nature or Nations, is not common to all men, but capable of private Dominion or proprietie as well as the Land," Selden wrote in the The Closed Sea in 1635. It was a direct rebuttal of Dutch Jurist Hugo Grotius' influential book, The Free Sea (Mare Liberum), which served as the foundation of modern international law, particularly for the United Nations Convention on the Law of the Sea (UNCLOS).

For Grotius, high seas are global commons that, by their very nature, should be accessible to the entire humankind on a non-exclusive basis. And this is precisely what the Philippines' arbitration case is all about: Preserving shared and rule-based access to global commons such as the South China Sea. It is about ensuring the modern principle of "rule of law" against the ancient principal of "might makes right."

Perturbed by the prospect of an embarrassing legal setback, China has embarked on a systematic effort to delegitimise the Philippines' arbitration case and misrepresent its nature. Beijing has lashed out at the arbitration proceedings and, in a comically desperate fashion, has sought to undermine the legitimacy of the arbitration body by setting up its own international courts and (supposedly) rallying up to 60 countries, mostly poor and many landlocked, to question the Philippines' arbitration maneuver.

The Legal Battle

China has tried to procedurally sabotage the Philippines' case by citing exemption clauses under the UNCLOS (see Art. 298, Annex VII), questioning the competency of the tribunal to adjudicate what Beijing describes as fundamentally sovereignty-related disputes, and argued that compulsory arbitration is premature since all avenues of conciliation supposedly haven't been exhausted.

Since arbitration bodies under UNCLOS don't have the mandate to address sovereignty claims, however, the Philippines astutely repackaged its complaint as a matter of sovereignty rights and maritime entitlements. Last October, the arbitral tribunal at The Hague unanimously voted in favor of exercising jurisdiction on the Philippines' case, thus rejecting Beijing's efforts to sabotage Manila's laudable legal effort.

Despite China's refusal to participate in the proceedings, the tribunal judges (under Art. 9, Annex VII) have proceeded with arbitration, but have (under Art. 5, Annex VII) continuously provided Beijing the opportunity to present its case formally or through informal channels such as, say, positions papers and statements by Chinese public officials.

In a 10-page summary, the judges argued that the Philippines' case "was properly constituted" and that the Southeast Asian country's "act of initiating this arbitration did not constitute an abuse of process [as asserted by China]." Reassuringly, it argued that "China's non-appearance in these proceedings does not deprive the Tribunal of jurisdiction," and "international law does not require a State to continue negotiations when it concludes that the possibility of a negotiated solution has been exhausted."

In short, the Philippines was right to resort to compulsory arbitration, because negotiations with an intransigent China were going nowhere. The Tribunal, however, didn't exercise jurisdiction on all of the Philippines' arguments against China, opting to cover 7 out of 15 items. But other items were left for either further clarification or further consideration since they "do not possess an exclusively preliminary character."

So far, the tribunal has exercised jurisdiction on the determination of the nature of disputed features (see Article 121) such as Scarborough Shoal as well as mischief, Gaven, McKennan, Hughues, Johnson, Cuarteron and Fiery Cross reefs; the environmental impact of China's activities near Scarborough and Second Thomas shoals; and aggressive maneuver against Filipino vessels near the Scarborough Shoal.

Strategic Implications

Though China has formally boycotted the arbitration proceedings at The Hague, and has vigorously argued against compulsory arbitration (under Art. 287, Annex VII of UNCLOS), the arbitral tribunal at The Hague provided the Philippines an unprecedented opportunity to leverage UNCLOS as a basis to resolve maritime disputes in one of the world's most critical Sea Lines of Communications (SLOCs). And China can't escape its consequences.

With the jurisdiction hurdle out of the way, the Philippines' case has paved the way for other claimant states to consider similar options. As an indication of the possibility for a "lawfare multiplier," Indonesia, Vietnam and Japan have contemplated the option of taking China to international court over disputes across the Western Pacific. Even if they don't actually file a case, they can extract concessions from China by simply threatening to do so.

More importantly, a favorable ruling (to the Philippines) could provide the legal pretext for other major powers such as America, Japan and other likeminded states to conduct sustained, multilateral Freedom of Navigation Operations (FONOPs) across the disputes waters.

The Philippines and its allies also hope that the tribunal will pass a favorable verdict on key items such as the validity of China's expansive nine-dashed-lien claims and (newly-concocted) doctrine of historical rights, which many objective observers believe are not consistent with prevailing international law.

What is at stake here is no less than protecting global commons under the auspices of international law. The alternative is the tragedy of great power politics and the rule of the jungle in the high seas.

This piece is partly based on the author's earlier articles here and here.