Can The Hague calm the South China Sea?

Today’s ruling from the Permanent Court of Arbitration in The Hague on the territorial dispute in the South China Sea isn’t going to resolve the matter, and not just because of Beijing’s pre-empting insistence that it holds sovereignty over the islets and shoals in dispute.

The Philippines’ decision to take the matter to the international court will not have been a wasted exercise, however. Today’s decision will set out legal guidelines by which the Philippines and other countries challenging China’s claims can proceed from now on, in the full confidence that they will have the foreign community on their side.

The Philippines, Indonesia, Malaysia Brunei and Vietnam have failed to earn the unified support of their neighbours in the Association of Southeast Asian Nations (Asean) in their territorial wrangling with Beijing. The battle for the South China Sea was discussed when the Asean and Chinese foreign ministers met last month in Kunming and then, for lack of consensus and amid political manoeuvring, summarily ignored in the closing joint statement. Thailand and the rest of the non-claimant Asean member-countries are too closely aligned with Beijing in terms of commerce, trade and security to risk taking sides. Overlapping claims in the sea were for centuries merely a matter of grumbling rivalry – until recent times when China commenced reclamation work on the Spratly Islands chain, starting modestly and then shifting into full development mode. It has built airstrips, harbours and communications facilities that some fear could be intended for military use.

It has begun asserting its authority in earnest in the Spratly, Natuna and Paracel islands based on a venerable sea chart showing a “nine-dash line” that it says encloses all the waters under its authority, including these islands, totalling some two million square kilometres.

In January 2013 Manila took the matter into the United Nations’ Permanent Court of Arbitration, seeking rulings on 15 points of contention. It is hoping the court will decide the nine-dash line is meaningless in terms of the UN Convention on the Law of the Sea (UNCLOS), which distinguishes between islands on one hand and “rocks” and “low-tide elevations” on the other. It allows for sovereignty to be claimed over islands and rocks within 12 nautical miles of a given mainland, whereas the Philippines argues that the features it disputes with China are much further out. The distinction is made because only islands can sustain life on a permanent basis, and as such can be claimed within 200 nautical miles of a country’s shore.  

Manila is also counting on a judgement that China violated the convention by erecting buildings and is fishing near the Scarborough Shoal and Second Thomas Shoal where it claims sovereignty. The area within China’s nine-dash line overlaps more than 500,000 square kilometres of the Philippines’ Exclusive Economic Zone, as well as waters claimed by Brunei, Malaysia and Vietnam – nations that have naturally been watching events in The Hague closely. Indonesia, Thailand and Singapore have had observers at the proceedings.

China signed on to the UNCLOS in 1996 but has already stated that the permanent court’s ruling will be viewed as meaningless. Beijing says it has proved its case, that its claim has an historical foundation and that it has shown its readiness to negotiate with the individual rival claimants.

The court could decide it has no jurisdiction or insufficient information to determine sovereignty, maritime boundaries or ownership of specific features in the sea. In that event it’s likely at least to provide the Philippines, and all of Asean, with a legal perspective and a clearer scope and definitions. From there they can perhaps proceed more assuredly, both as individual nations and as the cohesive trade and development bloc they are supposed to be. 

With China ignoring today’s ruling, the last hope of the Southeast Asian claimants is apt to be a negotiated code of conduct to govern the sharing of access and resources.