Law Challenges China Dream for Control of South China Sea

In a unanimous decision, the Arbitral Tribunal at the Permanent Court of Arbitration in The Hague ruled in favor of the Philippines against China’s claims to virtually all of the South China Sea and suggested China’s actions violate the UN Convention on the Law of the Sea. Both the Philippines and China are signatories to the treaty. In rejecting China’s wide claims and describing its activities as illegal, the verdict punctures the so-called China Dream espoused by President Xi Jinping for the great revival of the nation. “This verdict leaves Xi with an unenviable choice,” explains Nayan Chanda, founding editor of YaleGlobal Online. “He can either defy the world court and risk regional conflict and international opprobrium by illegally carrying on his military expansion, or he can try calm tensions through measured diplomatic efforts which run the risk of making him look weak before an increasingly nationalistic domestic audience that he himself has helped whip up.” The world awaits the response, negotiations or defiance, from both China and the Philippines. – YaleGlobal

Law Challenges China Dream for Control of South China Sea

With its hard line, China has painted itself into a corner while increasing the chance of conflict with its neighbors
Nayan Chanda
Thursday, July 14, 2016

South China dream interrupted: Party Secretary General Xi Jinping on board destroyer Haikou surveys South China Sea in 2012, top; Filipino nationalists overcome with joy at the court victory, 2016

NEW DELHI: An international court’s stinging verdict, denying China’s claim to ownership of virtually the entire South China Sea, has put a spanner in the “China Dream” of President Xi Jinping and left him with a series of difficult options.

When he took over leadership of the Chinese Communist Party in November 2012, Xi made the China Dream – described as “the great revival of the Chinese nation” – his signature mission.  To symbolically underline the importance of the South China Sea to this initiative, among his first visits outside Beijing as the new party boss was to meet the sailors aboard the Haikou, a guided-missile destroyer which had patrolled disputed waters in the sea.

In its sharp rebuke, the international court at the Hague called China’s claims illegal and said that its artificial island building is causing “irreparable harm,” concluding that Chinese claims of “such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the Convention.” The court said that “there was no legal basis for China to claim historic rights to resources within the sea areas falling within” Beijing’s so-called “nine-dash line.”

This verdict leaves Xi with an unenviable choice: He can either defy the world court and risk regional conflict and international opprobrium by illegally carrying on his military expansion, or he can try calm tensions through measured diplomatic efforts which run the risk of making him look weak before an increasingly nationalistic domestic audience that he himself has helped whip up.

Either course is perilous. Although China said from the outset that it did not recognize the authority of the Hague-based Permanent Court of Arbitration in ruling on the legal challenges mounted by the Philippines, and so waged a global propaganda campaign against the forthcoming ruling, the court’s sweeping dismissal comes as a major blow to Beijing’s international reputation. After all, China had helped draft the UN Law of the Sea Convention in 1982, a move that explicitly demonstrated its acceptance of the international court’s jurisdiction to arbitrate disputes. In now refusing to accept jurisdiction, China risks looking like a rogue nation rather than a responsible global power.

The court verdict demolished the basis of Chinese claims to control reefs and rocks spread across the South China Sea. The court severely reprimanded China that in its bid to build seven artificial islands it has “caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile ecosystems.” Indeed, the tribunal scathingly opined that “China’s recent large-scale land reclamation and construction of artificial islands was incompatible with the obligations on a State during dispute resolution proceedings, insofar as China has inflicted irreparable harm to the marine environment.” The court’s award, India’s former Foreign Secretary Shyam Saran noted, “changes, in a subtle manner, the regional balance against China.”

The tribunal also knocked out the basis of Chinese claims over reefs, right to build artificial islands and over the body of water as extension of 200 nautical miles of exclusive economic zone, EEZ. The tribunal concluded that features such as Itu Aba, claimed by China and Taiwan to be an island, was in fact a rock, unable “to sustain either a stable community of people or economic activity that is not dependent on outside resources.” In fact, the tribunal concluded that none of the Spratly Islands is capable of generating extended maritime zones.

The tribunal also questioned the legality of Chinese actions noting that “China had violated the Philippines’ sovereign rights in its exclusive economic zone by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to prevent Chinese fishermen from fishing in the zone.” It added, “Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.”

Southeast Asian countries that are resentful of China’s imperious attitude are quietly pleased to see China’s expansionist moves so publicly rebuked. But a divided ASEAN would be hard put to benefit from the ruling. Senior Singapore diplomat Bilahari Kausikan dismisses ASEAN’s role in resolving the dispute in which the main players are the US and China. “This is a reality,” he told an Australian publication Asialink. “It is utterly pointless to criticize a cow for being an imperfect horse, which is what much commentary on ASEAN and the SCS amounts to.”

With ASEAN paralyzed by disunity, the focus is now on the winning plaintiff, the Philippines.  Newly-elected President Rodrigo Duterte has shown a conciliatory attitude toward China. Beijing, too, has called again for bilateral talks with hints that it might sweeten the pot by offering Manila fishing rights. But given the country’s strong nationalist sentiment,  further encouraged by the court’s ruling, Duterte would be hard pressed to ignore the Hague verdict and accept China’s offer of a bilateral settlement.

Despite loud criticism of the court as part of a Western plot, China is expected to show restraint in view of the forthcoming meeting of the Group of 20 countries that Beijing is scheduled to host in September. Once the meeting is over China could step up construction of artificial islands, engage in drilling or reinforce its military deployment.  China could proceed to declare an Air Defense Identification Zone around the fortified artificial islands to further strengthen its de facto control over the contested waters. Such a military escalation would oblige the United States, which has already dispatched carrier battle groups to the area, to step up patrols and thus increase the risk of accidental clashes. One former US diplomat and long-time Asia watcher said, “The U.S. will be looking for early opportunities to sail and fly by some of the land features that the arbitral ‘award‘ makes plain cannot, under UNCLOS, generate territorial waters or EEZs.  So there will be some risks.”

Alternately, Saran says, China could adopt a less assertive posture and take the initiative to engage the Philippines and other ASEAN countries in serious bilateral dialogue and a more purposeful pursuit of a proposed Code of Conduct. He finds some indications, in the Chinese Foreign Ministry statement after the verdict, that “the door is being left open for the latter course."

In fact, sensing China’s loss of face and possibility of acting in rage, both the US and ASEAN countries have been restrained in their response – not gloating or pressing to take advantage. To calm the waters, according to a Reuters report, “the United States is using quiet diplomacy to persuade the Philippines, Indonesia, Vietnam and other Asian nations not to move aggressively to capitalize on an international court ruling.”

Considering the enormous cost of an armed conflict, even a prolonged cold war with Southeast Asian neighbors, the Chinese Foreign Ministry statement might suggest a potential way to deescalate. Ironically, by undertaking an extraordinary global diplomatic and public relations campaign against the arbitral court even before its decision was announced, China has not only painted itself into a corner but has inadvertently  magnified the scale of its defeat. Its vociferous objections have locked it into a position from which retreat could entail an unthinkable loss of face and domestic standing. Xi Jinping’s China Dream may be hoist with its own petard.

Nayan Chanda is the author of Bound Together: How Traders, Preachers, Adventurers and Warriors Shaped Globalization and is consulting editor of YaleGlobal Online, published by the MacMillan Center, Yale University.

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