MikeLigalig.com

06/22/2016 11:48 pm ET | Updated 1 hour ago
Richard Javad Heydarian


In the coming days, an obscure arbitral tribunal, formed under the aegis 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. Let’s put things into perspective.

In the last two years, China has reclaimed 3200 acres (1,295 hectares) of land to build gigantic artificial islands in 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-a-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 as 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 kilometres away from Philippines shores but w whopping 900 kilometres 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, imperilling freedom of overflight and navigation for regional and external military forces in the area.

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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 haven’t been supposedly 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 like, 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.”

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The bilateral negotiation option is particularly puzzling in view of China’s profession that it has had “indisputable sovereignty” in the South China Sea since “ancient times.” One doesn’t make arguments about history at a negotiating table: one makes offers. Negotiation is the art of finding a quid pro quo, not winning a debate. And if Chinese sovereignty is indisputable, what is there to negotiate about? Is Beijing willing to give some up? If, as most analysts believe, the regime is as petrified of rising nationalist sentiment as it appears to be (this seems, after all, to be one of the main reasons that Beijing has been trying to undermine the Philippines arbitration case), then how could it possibly cede ground at a negotiating table without triggering a domestic backlash?

The cynical interpretation is that China wants to negotiate bilaterally so that it can bully others into submission. But it would be strange indeed if Beijing really thought that Vietnam, the Philippines, Malaysia, or Brunei would be willing to sit down at a negotiating table merely to accept surrender terms. Presumably, Beijing thinks there must be a contract zone of some kind. What might that be?

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More likely, Beijing may think that rival claimants may be willing to yield on symbols in return for material gains. A strong indication that this may be so is that Beijing has regularly held out the prospect of “joint development” of natural resources in the South China Sea. Conceivably, Beijing may think that rival claimants would be willing to acknowledge China’s sovereignty over disputed islands in return for access to fishing grounds and the prospect of oil and gas riches. Certainly this would be an attractive outcome for China’s leaders, as they would be able to represent it domestically as standing ground on the “core interest” of sovereignty while at the same time demonstrating paternal benevolence toward China’s smaller and weaker neighbors.

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At the end of the day, Beijing faces a stark choice if it truly wishes to settle disputes in the South China Sea: it can either put its confidence in its claims to the test in appropriate judicial fora, or it can offer rival claimants genuinely attractive terms, which would almost certainly require territorial concessions. At present, both seem highly unlikely. Meanwhile, tensions continue to rise. Fasten your seatbelts.

David A. Welch is CIGI chair of global security at the Balsillie School of International Affairs, professor of political science at the University of Waterloo, and Senior Fellow at the Centre for International Governance Innovation.

http://thediplomat.com/

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