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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