http://foreignpolicy.com/BY JEROME A. COHEN
APRIL 20, 2016
The arbitration tribunal of five impartial experts that has been considering the Philippines suit against China under the U.N. Convention on the Law of the Sea (UNCLOS) will soon hand down its final decision. Although the tribunal will not decide territorial sovereignty questions or set maritime boundaries, it may well determine, among many other issues, whether there is a legal basis for China’s notorious “Nine-Dash Line†that ambiguously claims over 85 percent of the South China Sea and whether any of the islands in dispute are entitled to a 200-nautical mile exclusive economic zone.
If, as it promises, Beijing rejects the outcome, it will harm the UNCLOS system that Beijing, which has ratified the agreement, played a significant role in negotiating. It will also hurt Beijing’s own interests by reinforcing the image of lawlessness that it has acquired by its expansive territorial claims and assertive maritime actions — including a relentless drive to convert disputed submerged features, low-tide elevations, and rocks into islands, airfields, and ports. There is still hope that Beijing might change course, but it will require a recommitment to UNCLOS principles from affected Asian nations, and from the United States. It will also require other major countries increasing pressure on China, such as the G-7’s surprisingly strong April 11 statement of support for the arbitration.
In January 2013, the Philippines’ stunning initiation of UNCLOS arbitration against China brought the system of third-party dispute resolution into the world of Beijing’s maritime disputes. China insisted then that the UNCLOS tribunal lacked jurisdiction, but refused to submit its jurisdictional objections for the tribunal’s impartial decision. In October 2015, the tribunal ruled that it did have jurisdiction over certain issues and postponed determination of its jurisdiction over other issues until it issued its decision on the merits of the Philippines’ claims. That decision is now imminent.
But this is preeminently about politics, not only law. Beijing’s opposition reflects the current primacy of highly nationalistic elements within China’s military and political leadershipBeijing’s opposition reflects the current primacy of highly nationalistic elements within China’s military and political leadership over those Chinese international law experts, both within and outside government, who believe that China should test its challenges to the tribunal’s jurisdiction and to the Philippine claims before the tribunal itself — regardless of whether or not it’s legally obligated to do so. Under the fear-inspiring command of President Xi Jinping, it requires an act of courage for any international law or foreign relations specialist within the government to contradict prevailing policy, although academic debate continues to be allowed.
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