UNCLOS on Trial in the South China Sea

The latest installation of the Asia Maritime Transparency Initiative covers several recent developments in the region, including China and Japan’s progress towards an East China Sea crisis mechanism, Japan’s new record defense budget, and Taiwan’s decision to delay development work on Itu Aba island, following the revelation that a Chinese vessel was involved in the construction. This issue’s analysis, however, covers subject matter that should be of great interest to Lawfare readers—the ongoing arbitration between the Philippines and China over the South China Sea. Jay Batongbacal leads off with Arbitration 101, a terrific primer on what has happened so far in the arbitration and what we might expect from the South China Sea case in the coming months. Batongbacal reviews the events that led the Philippines to initiate arbitration in 2013 and explores the legal basis within UNCLOS for it doing so. He explains how the International Tribunal on the Law of the Sea (ITLOS) has proceeded with the case despite China’s refusal to participate and discusses the submissions that have taken place so far, including the Philippines’ Memorial submission in March 2014, and the relevant papers released by China, Vietnam, and the United States in December 2014. He also documents how diplomatic tensions between the parties have ebbed and flowed since arbitration began. Batongbacal reviews the core of the Philippines’ argument in the case: China’s nine-dash line claim is inconsistent with UNCLOS; China has illegally occupied or controlled eight features in the South China Sea and claims excessive maritime entitlements from them; China has unlawfully claimed or exploited resources within the Philippines’ EEZ and Continental Shelf. He also summarizes China’s counter-arguments in its December 2014 position paper: The arbitration is a dispute over territorial sovereignty over features in the Spratly Islands and Scarborough Shoal, which UNCLOS does not address and the Tribunal cannot solve; Even if the Tribunal could resolve the maritime dispute without dealing with sovereignty, it cannot rule on the Philippines’ claims without first undertaking a maritime delimitation, and the Philippines’ own maritime jurisdiction is still undetermined; China has previously opted out of compulsory dispute settlement under UNCLOS, and the Philippines’ decision to bring the case contravenes previous bilateral negotiation efforts between the two states. Finally, Batongbacal speculates on events that may occur in 2015 and influence the proceedings. He notes that the Philippines now has until March 15 to submit a response to China’s position paper, and that the Tribunal’s ruling on whether or not it has jurisdiction in the case will likely come sometime between mid-August and mid-December 2015. Renato Cruz de Castro argues that South China Sea arbitration demonstrates how liberalism/legalism can be used to blunt realpolitik. The Philippines’ filing with the Tribunal shows that it won’t be cowed by China’s strong-arm tactics, he argues, and invokes the international community’s stake in the outcome of the case. Matthew Waxman disagrees: the arbitration is not a stark test of law versus might. Instead, the case has demonstrated that legal arguments and processes are elements of power that states can employ in pragmatic and nuanced ways, and integrate with their broader strategies towards maritime and territorial disputes. The Philippines has been able to challenge China’s nine-dash line before an international audience; China has boycotted the proceedings and refused to acknowledge the tribunal’s legitimacy, yet submitted its own brief nonetheless; Vietnam refused to formally join the case but submitted its own statement unexpectedly to support its Philippine neighbors and advance its own claims; And despite its neutral position on sovereignty disputes and its non-ratification of UNCLOS, the United States has cast doubt on China’s claims through its Limits in the Seas paper. Richard Javad Heydarian argues that, since arbitration has been underway, Philippines-China diplomatic ties have eroded substantially. China may be withholding investments from Southeast Asian countries, and although Beijing is the leading source of capital for many developing countries, the Philippines has more direct investment in China than the other way around. It also may be deliberately excluded from China’s Maritime Silk Road initiative. The Philippines will hope to reset relations with China as it prepares to host the Asia Pacific Economic Cooperation forum later this year, but it remains to be seen whether the parties can reestablish closer ties despite the protracted legal battle. Finally, Gregory Poling argues that when it comes to a settlement in this closely-watched arbitration, Manila should not hope for a big win at The Hague. If the Tribunal rules that China’s nine-dash line cannot stand under UNCLOS but goes no further, this could give Beijing the opportunity to clarify that claim in legal terms (i.e. that it claims all the islands inside the line plus their maritime entitlements). Other parts of the Philippines’ case, however, may back China into a corner: Manila has asked the Tribunal to rule that several of the features that China occupies are low-tide elevations rather than islands, meaning that they are not even subject to sovereignty claims at all; it has also asked for a ruling that several of the features that China occupies are rocks, not islands, and can therefore only generate a 12 nm territorial sea, but no EEZ or continental shelf. If the Tribunal rules in Manila’s favor on both of these claims, there would be no way for China to redefine its nine-dash line in a face-saving manner. Beijing would, instead, dig in its heels, double down on its cryptic maritime boundary, and perhaps withdraw from UNCLOS altogether. As Poling’s argument highlights, the international community may well face an enforcement problem when it comes to the Tribunal’s decision, which will presumably come in 2016. Not only has China already laid the groundwork for it to reject the panel’s ultimate decision, but some aspects of the Philippines case (that Itu Aba is a rock, not an island, for example) are hardly water-tight. An unequivocal victory for the Philippines could have far-reaching, unintended consequences for both international law and maritime security. If, instead, the Tribunal were to limit its ruling to the illegality of the nine-dash line, a Chinese reinterpretation, however modest, might constitute progress for the LOS regime. Given that Vietnam may also consider bringing a case against China over South China Sea claims, and that Japan could eventually do the same in the East China Sea, it may be in Beijing’s interest to revise its claims on palatable terms, rather than to exit the regime altogether, assuming it can find a way to do so. Exiting UNCLOS would clearly harm China’s international legitimacy at a time when it is endeavoring to build several new regional institutions. As we consider these arguments on what international law can and cannot do to defuse maritime tensions in the Pacific, it is worth noting how unbelievably difficult it will be to resolve the sovereignty disputes in the South China Sea, particularly in the Spratly Islands. Not only does UNCLOS not opine on sovereignty, but five different states lay claim to land features in this one island group. No bilateral process will be able to resolve this multiparty fracas in the foreseeable future. If, however, this closely-watched round of South China Sea arbitration forces one or both parties to clarify its claims in UNCLOS terms, that will be a victory for dispute management as well as for international legal legitimacy. These may sound like a small victories, but with so many players and such high stakes, we should welcome them.