A Return to the Rule of Law in the South China Sea?

The UNCLOS tribunal’s ruling that it has jurisdiction in the case brought by the Philippines will likely improve prospects for the rule of law in the South China Sea – and it is in China’s interest to contribute to this development.
DigitalGlobe high-resolution imagery of the Subi Reef in the South China Sea. Photo via Getty Images.DigitalGlobe high-resolution imagery of the Subi Reef in the South China Sea. Photo via Getty Images.

Chathamhouse – China has been on a diplomatic charm offensive last week to improve its relations with  neighbours who have a stake in the stability of the South China Sea (SCS), reaching out to Vietnam and Japan and  culminating in the historic meeting with Taiwan’s leader Ma Ying-jeou on 7 November. This followed on from recent setbacks for its ambitions in the SCS . First, the United States sent its warship USS Lassen within 12 nautical miles of the Chinese controlled Subi Reef to challenge China’s claim to the feature. Then, on 29 October an arbitral tribunal established under the United Nations Convention on the Law of the Sea (UNCLOS) and hosted by the Permanent Court of Arbitration (PCA) at the Hague found that it has jurisdiction to hear the claims put forward by the Philippines in a case against China concerning maritime rights in a part of the SCS claimed by both.

These events could signal a new phase in China’s conduct of its SCS diplomacy, in which the international rule of law may play a more important role for both external and domestic reasons.

The arbitral award

China has refused to participate in the case (even if it has made its legal arguments on jurisdiction known through other methods), claiming that the complaints by the Philippines are a thinly veiled attempt to get the Tribunal to rule on issues of territorial sovereignty and maritime delimitation, on which it has not accepted compulsory dispute settlement under UNCLOS. This claim, denied by the Philippines, has now been rejected by the tribunal as well.

In the view of the tribunal, it is possible for it to rule on the Philippines’ 15 submissions without necessarily addressing the question of sovereignty over disputed islands and other maritime features. Even though this means that its jurisdiction will be constrained by China’s declarations on these issues, it does not exclude the possibility that the panel will address the Philippines’ second submission, which directly challenges China’s claim based on the ‘nine-dash’ or ‘U-shaped line’ which encompasses an area consisting of most of the SCS, in which China says it enjoys ‘historic rights’ which it has so far refused to specify. It also means that, while the tribunal will avoid making statements on the sovereignty of specific islands claimed by both China and the Philippines, it will pronounce on maritime rights connected to some of those islands and other features, and in the process most likely limit the expansive rights that China has claimed.

China’s role in the proceedings: past and future

In its procedure the tribunal has taken a balanced approach and made many attempts to reach out to China, as documented in its recent decision, including the bifurcation of the procedure into a jurisdictional and a merits stage. Even now it continues to invite China to join the proceedings. It is unlikely that this will happen, especially given the vehement rhetoric with which China has denounced the proceedings, targeting not only the Philippines but the tribunal itself. An official statement that the tribunal has ‘abused relevant procedures and obstinately forced ahead with the arbitration […] and eroded the integrity and authority of the UNCLOS’ is of particular concern.

At the same time, such language is not confined to China, having been used by other states following setbacks in international proceedings. China’s non-appearance is also not without precedent, but rather typical great power behaviour similar to that of the United States in the Nicaragua case before the International Court of Justice in the 1980s and that of Russia in the recent Arctic Sunrise case initiated against it under UNCLOS by the Netherlands.

The rhetoric also obscures the ambivalence that has existed from the beginning in Beijing’s policy circles as well as among China’s international law community, where there has been a constituency in favour of participation in the proceedings. This resulted in China’s ‘non-participatory participation’ through a December 2014 position paper, treated by the  tribunal as a de facto pleading. Additional arguments were presented in academic publications by international lawyers favourable to China’s position.

China’s international law ambitions

With a ruling on the merits of the Philippines case now a certainty, China finds itself at a fork in the road. Its ‘non-participatory participation’ reflects a compromise between exceptionalist great power behaviour and a wish to be seen as a law-abiding nation, different from emerging great powers in the past. This has been a theme in China’s public diplomacy since the mid-2000s. Moreover, since the ‘Rule of Law’ Fourth Plenum of the CCP in October 2014, China has voiced its ambition to become a greater shaper of international rule of law. The Chinese Ministry of Foreign Affairs has been  reinforcing its legal capabilities, including the establishment of an advisory committee of international lawyers. These ambitions are not served by China’s conduct in the arbitration case, nor by the tensions stoked by its building spree in the SCS and projection of its increasing maritime power in the past year.

If China chooses to behave as a great power, it can continue its efforts to tilt the balance in the SCS in its favour, which entails the risk of an eventual military confrontation, possibly with the United States. If it wishes to act on its ambition to be a different power instead, now would be a good time to do that in the framework of international law.

In some Beijing circles, there is still a lingering lack of confidence both in China’s own legal capabilities and in international judicial institutions. Insofar as this explains China’s reluctance to elaborates on its SCS claims, the Philippines case has now served to force its hand. If China’s ‘historic rights’ are as strong as it has consistently asserted, the time has come for China to demonstrate this.

The return of the rule of law

The decision in Philippines v. China goes a long way towards countering the damage done to the authority of the arbitral tribunal and the UNCLOS dispute settlement system by China’s refusal to participate. Given the events of this week and earlier indications that China is paying more attention to the positions of its South China Sea neighbours, it would be unwise to write off the role that international law can play in resolving the complex web of claims. In its own interest both in the South China Sea and as a self-styled champion of the international rule of law, China can contribute to this development by stepping up and elaborating on its claims.

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