Artículo The Diplomat, 17.06.2016 Capitán Tuan N. Pham, oficial de marina norteamericano
The long-awaited Tribunal’s merits ruling will come soon. What happens then?
In Part 1, I examined Chinese legal opinions regarding the Philippines-initiated arbitration case against China’s expansive nine-dash line (NDL) claim in the South China Sea (SCS). In short, the intent of Beijing’s legal position paper on the Philippine case at the International Tribunal of the Permanent Court of Arbitration (PCA) in was to ensure the Tribunal judges ask the “right” (meaning “favorable”) questions in their deliberations. Beijing’s goal was to indirectly challenge the merits of the case without formally doing so — which would imply acknowledgment of the PCA’s jurisdiction.
Although the December 2014 paper presented an informal legal argument for a state to make a sovereignty claim over a low-tide elevation, despite conceding that the International Court of Justice ruled in 2012 that such a claim is not permissible under the United Nations Convention on the Law of the Sea (UNCLOS), Beijing curiously did not address the legal status of the disputed Scarborough and Second Thomas Shoals, nor did it defend its contested NDL claim as a maritime claim in accordance with UNCLOS. The glaring omission may have been a tacit recognition of the fragility of its legal standings on those two points and a pessimistic outlook on the Tribunal’s jurisdictions and merits rulings. Additionally, the paper glossed over Manila’s complaint that Beijing has unlawfully interfered with the enjoyment and exercise of the Philippines’ sovereign rights in its claimed EEZ and continental shelf.
All in all, rather than directly addressing the facts of the grievances, China simply asserts that it is exempt from arbitration on certain topics, to include the maritime delimitation of disputed waters as well as being surprisingly silent on its restrictive reinterpretation of UNCLOS and other international legal frameworks that allow a state to challenge others’ rights to conduct maritime activities in its exclusive economic zone (EEZ). Altogether, the paper reinforced Beijing’s expansive view of territorial sovereignty, overlapping maritime sovereignty claims with its neighbors, and ambiguous rights to exploit the sea-based natural resources within those disputed waters, to include its claimed EEZ. Consistent with this viewpoint, China objects to intelligence surveillance reconnaissance (ISR) flights, maritime survey operations (SURVOPS), and military exercises in its EEZ and other claimed maritime areas. Beijing regards these activities as unacceptable violations of its territorial sovereignty, unlawful under international law, and a national security threat.
Predictions are always challenging and sometimes haphazard, but nonetheless, respected Law Professor James Kraska of the U.S. Naval War College has published two insightful articles on what to expect from the Tribunal. In his articles “Legal Analysis of the Philippines-China Arbitration Ruling” and “Forecasting the SCS Arbitration Merits Award,” he predicted that the Tribunal will not decide which states ultimately have sovereignty over any of the disputed geographic features, but likely will recognize that the features at issue are entitled to either no or perhaps very small maritime zones (territorial seas) and no EEZ or continental shelf – significantly weakening Beijing’s NDL claim and greatly benefiting Manila and the other claimant states. The only wildcard is the Taiwan-claimed and occupied island of Itu Aba. If the Tribunal finds that Itu Aba is indeed an island deserving of an EEZ, Beijing will then continue to have a credible claim to large swath of the SCS – albeit through Taipei.
It is generally expected that the PCA will largely rule in favor of Manila. Most likely, Beijing will simply ignore the legal decision, as reiterated during this year’s Shangri-La Dialogue, and perhaps even accelerate its ongoing militarization of the SCS to create further facts on the ground to include the eventual establishment of an air defense identification zone once they have the full means to enforce it. If so, there is very little that the Tribunal can do to enforce the ruling. It will, however, diminish the non-complying state’s credibility when it invokes and relies on international law in the future. In that way, non-compliance by a state to an adjudicated dispute becomes a leverage point in international politics, but not in international law. In the case of China, refusal to comply may have great reputational costs for a rising power seeking to become a world power, especially as friendly relations with neighbors and international credibility are essential to its continued rise as a global leader.
Alternatively, Beijing may ignore the PCA’s ruling and just bide its time, at least until after the G-20 Summit slated to be held in Hangzhou, China this September. Chinese leaders may have made the rational calculus that they already achieved significant gains and just need to exercise strategic patience to consolidate those gains for now. China’s land reclamation and militarization of the various geographic features have given it the capability and capacity to monitor and control much of the SCS. Hence, while China occupies a position of regional advantage and strength, it must take care not to risk its advances by needless acts of aggression. Otherwise, it invites erosion of its strategic positions and further delays in its strategic timetables. All Beijing really needs to do is to sustain discreet and steady assertiveness (below the international radar) in order to safeguard its strategic interests without indulging in “overreaching” acts that could encourage more restraint by Washington and its allies and partners in the region and/or collective actions by the other SCS claimants.
Consider also the People’s Liberation Army Navy’s (PLAN) growing presence and operations in other states’ EEZs, which contradict China’s legal position on foreign military activities in its own EEZ. As the PLAN continues to operate in distant waters and in proximity to other nations’ coastlines, Beijing will have no choice but to eventually resolve the inconsistency between policy and operations. China must either pragmatically adjust its standing policy or continue to assert its untenable authority to regulate military activities in its EEZ. The former is more likely, while the latter carries more risks in terms of the legal validity of its own maritime sovereignty claims, international credibility, and world standing.
In fact, Beijing has already begun incrementally and subtly moderating (or evolving) its legal positions. The Chinese now appear to not necessarily object to ISR flights, maritime SURVOPS, and military exercises in their EEZ; rather they object to the scope, scale, and frequency of the aforesaid activities in the EEZ. They also seem to no longer view such activities as intrinsically unlawful under international law, but still regard those activities as threatening to their peace and security as well as destabilizing to the region and why the activities must stop.
U.S. Strategic Opportunities
-Formulate Post-ruling Response. China anticipates an unfavorable merits ruling and has taken steps to uphold its maritime sovereignty claims, preserve its strategic positions, and mitigate the impact to its national interests. Talking points in a December 15, 2015 People’s Daily editorial suggest that the policy process to respond to the merits ruling is already well-underway in Beijing, as underscored by the surge in official statements and authoritative media commentaries weeks ahead of the expected Tribunal’s decision. All in all, Beijing succeeds merely by refusing to acknowledge the ruling’s legitimacy and showing Manila, the region, and Washington that they cannot enforce it.
Thus, prudence suggests that the United States should have a readied response of its own to the ruling. Some critical questions to consider: What is the desired end state post-ruling and how to get there? What is at stake if the ruling favors Manila and the Philippines publicly asks for American help enforcing it? What to do next if the Tribunal rules in favor of Manila (most likely) or in favor of Beijing (most dangerous)? What is the potential political and policy impact of newly elected Philippine President Duterte who has advocated – albeit during the election campaign – holding bilateral talks with China if the current strategy of litigating Manila’s dispute with Beijing and seeking multilateral resolution does not produce tangible results within the next two years?
-Encourage and Support More Legal Challenges. An unfavorable merits ruling for China could invite further, and potentially coordinated, legal challenges from the other rival claimants like Vietnam, Malaysia, and Brunei. Washington should then encourage and support Hanoi, Kuala Lumpur, Bandar Seri Begawan, and as much as possible the other ASEAN countries (in lieu of ASEAN as an organization), in putting additional pressures on Beijing to curb its assertiveness, stop its land reclamation and militarization activities, and come in good faith to the “multilateral” negotiating table for a peaceful and enduring resolution of the competing claims. The Taiwanese-proposed SCS Peace Initiative (similar to the 2012 East China Sea Peace Initiative) that calls on all parties to shelve their maritime disputes, respect UNCLOS, and explore the joint development of resources offers a promising starting point in terms of a potential multilateral agreement that all can agree on.
-Challenge Chinese Reinterpretation of International Law. China’s legal positions have morphed over the years as it develops a blue-water navy befitting of an emerging maritime power and rising world power. Chinese positions have become more fluid, nuanced, sophisticated, and in some cases moderated. Washington should keep challenging Beijing’s reinterpretation of international law outside of accepted norms. Silence and inaction implies acknowledgment and consent to China. Better to dissuade and deter Chinese assertiveness and unilateralism now than wait until later, when it may become a fait accompli.
Consider the pending Tribunal’s merits ruling. It is quite evident that Beijing’s preemptive formal declaration of non-compliance on October 30, 2015 has little basis in international law. For all of China’s grandiloquence about Chinese rights under UNCLOS and international law, Beijing is conveniently disregarding several provisions therein and trying to dismiss a ruling that is a product of that same international legal process. This is specious, and should not go unchallenged. If Beijing wants to be a respected major player in the global arena, then it must abide by and uphold the rule of law. China cannot play by its own set of rules, or worse flaunt its exceptionalism on the world’s stage for all to see. Beijing needs the international community to believe that its commitments under international law are sincere and credible, especially in the maritime trade realm, on which its growing economy relies. By the same token, the world needs a rising China to be a responsible global leader respectful of the rule of law.
That being said, China is a member of UNCLOS but often violates its provisions, whereas the United States has not ratified UNCLOS but has been its foremost champion on behalf of freedom of navigation, global commerce, and international rule of law. Hence, Washington should ratify UNCLOS if its challenges are going to have gravitas and be taken seriously. Otherwise, the status quo simply strengthens Beijing’s calling into question Washington’s sincerity about upholding international norms.
-Highlight Environmental Impact. In the context of a growing domestic concern over worsening air pollution and an apparent international policy shift at the 2015 UN Conference on Climate Change in Paris (in stark contrast to the 2009 UN Climate Change Conference in Copenhagen), Beijing seems to be increasingly sensitive to environmental issues. News reporting of SCS coral reef destruction caused by Chinese land reclamation activities appears to have hit a raw nerve with Beijing. The Chinese Ministry of Foreign Affairs took great pain and care to swiftly and formally respond to those news reports.
Therefore, in anticipation of a likely Tribunal legal opinion that China should have consulted in advance with nearby affected states and conducted an environmental impact study prior to embarking on its expansive land reclamation activities, Washington should lay the groundwork now to launch a post-ruling, regionally-sponsored and -led independent environmental assessment detailing and documenting the ecological impact to the fragile marine ecosystems. The results could put more international (and possibly domestic) pressures on Beijing to curtail its damaging activities in the SCS, and may even spur regional nations (and possibly ASEAN) to take more assertive actions against China.
Timing may be right for the latter. All the claimants were present in Paris, and even if they disagree about their maritime boundaries, they all acknowledge the reality of climate change and its impacts on their various outposts in the Spratlys as well as their respective coastlines. Environmentalists are also starting to take notice of the environmental and biological impact, and more importantly calling for international actions.
Sustain and Expand Maritime Security Initiative (MSI). The United States’ MSI is a key enabler of collective actions to moderate China’s assertiveness in terms of enhancing regional maritime domain awareness and moving toward a common operating picture in the SCS. Put simply, Washington is working with Southeast Asian nations (and particularly the claimant states) to improve their ability to detect, understand, respond, and share information about air and maritime activity in the SCS. One cannot act collectively without first having knowledge to determine what, how, where, and when to act.
At the end of the day, Manila scored a major win in the jurisdictional phase and is expected to win again during the merits phase of the legal challenge aimed at curtailing Beijing’s assertiveness and unilateralism in the SCS. Although the interim jurisdictional victory does not influence the pending merits ruling, the main Chinese narratives of broken bilateral agreements, legal inadmissibility, and no jurisdiction have been undercut and muted.
Confronted with this, China will still opt to ignore the final arbitration decision despite incurring great reputational costs as a benevolent rising power respectful of international law, but Beijing could also hedge and later seek some sort of future accommodation while saving “face.” For now, the latter may be a bridge too far for China’s leaders, who are hostages to their own rhetoric. After all, they have repeatedly told the Chinese people through the years that China has “indisputable sovereignty” over the whole of the South China Sea, left to them by their ancestors “since ancient times.”