ChinaFile

What Is the Future of the South China Sea?

The July 12 ruling clarified the law of the sea, but may further alienate China.

MANILA, PHILIPPINES - JULY 12:  Anti China protestors mount a protest rally against China's territorial claims in the Spratlys group of islands in the South China Sea in front of the Chinese Consulate on July 12, 2016 in Makati, Philippines. The International Tribunal of the Permanent Court of Arbitration is expected to come out with a ruling today between the Philippines and China over the dispute in the South China Sea on Tuesday. The case was filed by the Philippines in 2013 since China took control of a reef about 140 miles from the Philippines coast although the People's Republic maintains it will not be bound by the ruling.  (Photo by Dondi Tawatao/Getty Images)
MANILA, PHILIPPINES - JULY 12: Anti China protestors mount a protest rally against China's territorial claims in the Spratlys group of islands in the South China Sea in front of the Chinese Consulate on July 12, 2016 in Makati, Philippines. The International Tribunal of the Permanent Court of Arbitration is expected to come out with a ruling today between the Philippines and China over the dispute in the South China Sea on Tuesday. The case was filed by the Philippines in 2013 since China took control of a reef about 140 miles from the Philippines coast although the People's Republic maintains it will not be bound by the ruling. (Photo by Dondi Tawatao/Getty Images)

On July 12, a court based at the Permanent Court of Arbitration in the Hague rejected China’s sweeping claims over much of the South China Sea. The Philippines filed the case against China in 2013, arguing that some of China’s claims and activities violated the United Nations Convention on the Law of the Sea (UNCLOS). The court ruled that a scattering of rocks and reefs in the contested South China Sea does not qualify for exclusive economic zones (EEZ), and stated that the nine-dash line, an imprecise demarcation including most the South China Sea, could not serve as the historical basis of China’s sovereignty claims. China refused to participate in the arbitration and has repeatedly declared that it will not accept the court’s ruling. In this ChinaFile conversation, experts share their reactions to the decision and thoughts about Beijing’s rejection of the ruling. — The Editors

M. Taylor Fravel, Associate Professor of Political Science and member of the Security Studies Program at the Massachusetts Institute of Technology:

My initial reaction is that the tribunal’s award overwhelmingly favors the Philippines — a huge win for Manila.

China’s only lawful claims in the South China Sea would be 12 nautical miles of territorial seas from the land features in the Spratly Islands deemed to be rocks above high tide. China cannot claim an EEZ from any of the land features of the Spratlys Islands, including the largest, Itu Aba. Nor can it claim any historic rights to resources within the nine-dash line.

In particular, the tribunal ruled as follows:

  • China cannot lawfully claim historic rights to resources within the nine-dash line.
  • China (and others) cannot claim an EEZ from land features above high tide in the Spratlys, which were all judged to be “rocks” entitled only to a 12 nautical mile (nm) territorial sea.
  • Mischief Reef was determined to be a low-tide elevation on the Philippines’ continental shelf. China’s construction of artificial installations on the reef violates the Philippines’ sovereign rights.
  • The Spratly Islands as a group cannot generate any maritime zones as a unit. This appears to be an effort to pre-empt a Chinese claim to any maritime zones based on straight baselines that could be drawn around the Spratlys as a whole.

What does this mean? The only lawful claim to maritime zones that China can claim in the South China Sea would be a 12 nautical mile territorial sea from land features in the Spratly Island that are above high tide. China (and others) cannot claim an EEZ from any land feature in the Spratlys, as none were judged to be islands under UNCLOS warranting such a zone. China cannot claim any historic rights to resources, either, as the tribunal judged that China gave up those rights when it acceded to UNCLOS. In this way, the tribunal’s ruling restricts significantly the scope of maritime claims that China can lawfully make under UNCLOS in the South China Sea. Paradoxically, this may further increase the importance that China attaches to its sovereignty claims over these land features.

Finally, a few areas of the ruling favored China:

  • Gaven/McKenna Reef was deemed to be a rock and not a low-tide elevation.
  • The tribunal claimed no jurisdiction in the standoff over Second Thomas Shoal, as it concerned military activities exempted by Article 298.
  • Traditional fishing rights for all states within the territorial sea of features in the Spratlys were apparently upheld, based on the finding that the Philippines had traditional fishing rights at Scarborough.
  • The tribunal did not define what the nine-dash line might mean but only ruled on what it could not mean, namely, a claim to historic rights.

Jessica Chen Weiss, Associate Professor of Government at Cornell University and the author of Powerful Patriots:

The Chinese government and media have repeatedly rejected the tribunal’s jurisdiction in anticipation of the ruling, creating ample space for China to maneuver. On WeChat, a popular social media platform in China, Chinese state media are stressing that the best response is to ignore the verdict. So far, Chinese President Xi Jinping’s government has been highly effective at both stoking and quashing nationalist sentiment over the South China Sea. His government has fanned patriotic sentiment through the media but kept it online rather than in the streets. Chinese police intervened when demonstrators sought to protest over Scarborough Shoal in 2012 and repressed anti-Vietnamese demonstrations after Vietnamese protests killed several Chinese workers during the oil rig standoff in 2014. Protests by Vietnamese and Filipino activists have been met with Chinese scorn rather than countermeasures.

If we now see Chinese protests over the United States or other countries’ actions to enforce the ruling, we should take them seriously — as a sign of China’s resolve. However the United States and its allies proceed, a quiet approach — actions with a minimum of publicity and a clear legal rationale — would be most effective. The more we trumpet China’s defeat or loss of face, the more domestic pressure or temptation the government will feel to respond with more than bluster.

Peter Dutton, Professor of Strategic Studies and Director of the China Maritime Studies Institute at the U.S. Naval War College:

The award is breathtaking in its scope and the degree to which it gives long-needed clarity to the law of the sea. That it is a unanimous opinion from five of the most learned and experienced practitioners of international law of the sea is especially important.

I see three major takeaways from today’s opinion.

First, the opinion is a strong reinforcement of the dispute resolution process of the UNCLOS and also a strong reinforcement of international law over power politics. The tribunal issued a strong rebuke to those who would use coercion to have their way on the seas. In that sense the ruling strongly supports the administration’s calls for peaceful dispute resolution in accordance with international law. But the United States could and should do more. Currently, we stand with Iran and North Korea as one of the very few coastal states to have failed to ratify UNCLOS. Full U.S. participation will ensure our leadership over the future development of the law of the sea and best protect our rights and interests. In rejecting the tribunal’s authority, China has shown it respects only the role of power and not the rule of law. The Senate should ratify UNCLOS and thereby underscore U.S. leadership and commitment to an international system based on law.

Second, the award adds great clarity to the law of the sea. We now have a much clearer understanding of what types of islands are entitled to resource zones and which are not. The ruling will cause many states to reexamine their own policies in this regard. We now know with certainty the very limited role history plays in determining resource rights at sea and that the Spratly Islands cannot claim resource zones as a group, both points on which China has relied to justify its behavior. The award strikes down China’s expansive claims to historic rights beyond UNCLOS, its blatant interference with the Philippine fishing and hydrocarbon rights, its unilateral island-building on the Philippine continental shelf, and its wanton abuse of the environment.

Finally, this decision is much more than a pyrrhic victory for the Philippines as some will suggest. This opinion will have normative power that over the long run will and should affect the way every state thinks about the South China Sea in the future. Ultimately, the ruling’s power is not in its direct enforceability, but in the way it will inevitably alter perceptions about right and wrong actions in the South China Sea. Coercion will no longer stand with moral impunity. Even if indirectly, the opinion should therefore serve as the basis for improved bilateral negotiations in the future. It has significantly narrowed the scope of what is in reasonable and justifiable dispute and therefore should help the parties move closer to a final resolution of their differences.

Orville Schell, the Arthur Ross Director of the Center on U.S.-China Relations at Asia Society:

The ruling just handed down by the Hague’s Permanent Court of Arbitration in response to the complaint made by the Philippines after the seizure of Scarborough Shoal by China in 2012 now looks destined to radically alter not only China’s interaction with its Asian neighbors, but with the United States as well. Because the ruling so undermines China’s claims in the South China Sea region, Beijing finds itself at a critical juncture point: It can either adjust course and seek accommodation with various claimants in these maritime disputes that have put it at odds with not only the Philippines, but with Vietnam, Malaysia, Brunei, and now even Indonesia, or it can double down and become even more obdurate.

What mitigates against the likelihood that Beijing will become less obdurate and more flexible in its approach to the South China Sea is the reality that having identified these contested islands and rocks as part of China’s so-called “core interest,” it has become trapped by its own conviction that disputes involving the question of Chinese sovereignty are never negotiable. As a result, China’s neighbors and the United States — which has treaty obligations with the Philippines, Japan, and Korea, and growing partnerships with other South East Asian countries, such as Singapore and Vietnam — must be ready for a much more rigid, even belligerent, Chinese posture. It will, of course, be the United States that will be most immediately challenged by the Hague’s ruling and China’s response. For having had the Seventh Fleet long deployed in Asia and playing an important role in assuring freedom of navigation in the region, the White House will be confronted by some very difficult decisions about how far it wants to go in confronting a potentially aggrieved and even more aggressive China.

This will be a delicate high-wire act that must also take into account the importance of the larger U.S.-China relation and the need for cooperation on other crucial issues such as nuclear proliferation (and particular the fate of the North Korea’s nuclear arsenal), climate change, global trade, and pandemics.

How these other important issues can compete with what surely will be a vitriolic Chinese reaction is far from certain. But suffice it to say, the interaction over the next few weeks between China, the United States, and its Pacific neighbors will be crucial, for it will help cast the die for future relations in the whole region.

Edward Friedman, Professor Emeritus in the Department of Political Science at the University of Wisconsin, Madison:

What does the ruling change? It does not increase the military strength of any Indo-Pacific country threatened by the party’s state expansionism. It will not increase the willingness of Indo-Pacific governments to join in collective security to resist further Chinese expansionism.

The ruling may, however, strengthen those forces in Beijing that argue that the present international system was created by the United States to serve the interests of the United States and therefore is a system that does not serve Chinese interests. China could become more chauvinist, militarist, and revisionist.

Or, the decision instead may strengthen those forces in Beijing which have long argued that a Beijing switch from Deng Xiaoping “hide and bide” policies to post-Deng (post 2007-2008 Great Recession, understood as the United States decline and China unstoppable) assertiveness is not serving Chinese interests in the Indo-Pacific but is instead uniting the countries of the Indo-Pacific to join together, including military preparedness, against China in what party leaders see as China’s neighborhood.

What matters most for war and peace in the Indo-Pacific is the impact of the ruling on the ongoing struggle over foreign policy inside of Zhongnanhai, the headquarters of the Chinese government in Beijing.

Tom Nagorski, Executive Vice President of Asia Society:

I was struck by language in the ruling that pertained to the environmental damage done in these waters. This was an often-overlooked element in the Philippines’ case — overlooked because the South China Sea has rightly been seen primarily as a major geopolitical and strategic issue. The ruling finds that the Chinese have inflicted “irreparable” damage to the environment in the course of its building up the various islands, with airstrips and so on. That’s damage done to the coral reef environment, and what the tribunal said was harm “on a substantial scale” to marine life in the area. This is important because China has actually become a major voice on global climate and other environmental issues; and also because this part of the ruling will attract attention and criticism from those for whom the environment is more important, or more interesting, than the geostrategic question of who controls the seas.

Dondi Tawatao/Getty Images

 

Peter Dutton is Professor of Strategic Studies and Director of the China Maritime Studies Institute at the U.S. Naval War College.
Edward Friedman is Professor Emeritus in the Department of Political Science at the University of Wisconsin, Madison.
Tom Nagorski is Executive Vice President of Asia Society.

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