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South China Sea Arbitration: Sink, Swim, or Abstain

By   /  January 28, 2015  /  No Comments

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799085675_4961007665_zChina and the Philippines are locked in ongoing international arbitration related to the legality of Chinese claims to a vast section of the South China Sea (SCS).  The Arbitral Tribunal is not expected to reach a decision until late 2015 at the earliest, and even then, it is unlikely that competing claims to the SCS will be resolved in any lasting manner.  In particular, China’s general abstention from the arbitration process casts doubt on the enforceability of the Tribunal’s decision.  Nonetheless, the ongoing SCS arbitration highlights the many roles international arbitration can play as an equalizer between disparate rivals, a platform for regional cooperation, or a catalyst for further conflict.

 

History of the Dispute

Several countries have disputed ownership of the oil- and gas-rich SCS and its multitude of uninhabited islands since Japan formally renounced its claim to the region in the aftermath of World War II.  China’s initial claim to the large swath of maritime territory dates to 1947, when the Nationalist Chinese government issued a map containing eleven dashes delineating an area of ocean bounded by the Philippines to the east, Malaysia and Brunei to the south, and Vietnam to the west.  This map was modified two years later, and the number of dashes reduced to nine, to accommodate a new agreement with the government of Vietnam regarding the boundaries of the Gulf of Tonkin.  Both the 1947 map and its subsequent iteration were based on historical Chinese occupation of the region dating back centuries.  In the 1950s, Manila sought to counter Chinese claims by establishing a new municipality on part of the Spratly archipelago.  Today, the Philippines, Vietnam, Malaysia, and China claim various islands and maritime zones within the SCS under principles of terra nullius, exclusive economic zones (EEZ), geo-proximity, and continental shelf continuity.

 

Significance of the South China Sea

A peaceful solution to this dispute is important to regional and global stability because the SCS is a major maritime trade route as well as a significant source of oil and natural gas.   Maritime shipping through the SCS accounts for more than half of annual global merchant fleet tonnage.  The U.S. Energy Information Administration estimates that the SCS contains approximately 11 billion barrels of oil and 190 trillion cubic feet of natural gas in proved and probable reserves, though the vast majority of these resources are situated beneath undisputed coastal waters.  Nonetheless, any escalation in tensions between SCS claimants could threaten international trade and spill over into areas of considerable value to regional governments and the global economy.

 

Recent Developments

As a means to attain peaceful resolution, several regional parties have sought international arbitration to delineate SCS territorial claims.  In January 2013, the government of the Philippines instituted arbitral proceedings at The Hague against China under the UN Convention on the Law of the Sea (UNCLOS), of which both China and the Philippines are signatories.  The UNCLOS Arbitral Tribunal in Philippines v. China is comprised of five judges from Ghana, France, Poland, the Netherlands, and Germany.  As the case has proceeded, the government of the Philippines has tendered several white papers to the Tribunal that argue for the Philippines’s territorial right to areas claimed by China.  Beijing generally has protested the proceedings, and submitted counterclaims in response to only some of the deadlines established by the Tribunal.  The most recent such deadline passed in December 2014, when Beijing refused to respond to the latest arguments submitted by Manila.  That same month, the government of Vietnam filed a paper before the Tribunal in which Hanoi expressed solidarity with the Philippines.  The United States has also weighed in with a report outlining the U.S. position that China legally may only assert sovereignty over SCS islands and not surrounding waters.

The next Tribunal deadline is in March 2015, when the Philippines is to submit a supplemental pleading in response to Chinese statements.  This will be followed by an opportunity for China to submit a rejoinder in June 2015.  If these deadlines are met, a Tribunal decision is expected in late 2015 or early 2016.

 

Implications

The UNCLOS Tribunal presents an opportunity for peaceful resolution to a potentially volatile situation in the SCS.  It is highly unlikely that the Tribunal will validate China’s claims to the nine-dash zone of the SCS, potentially blunting China’s regional gravitas and encouraging regional states to make more-expansive claims into that zone.  At the same time, the Philippines cannot expect any decisive victory: a ruling against the nine-dash delineation will merely invite a legal response from China that is more carefully grounded in modern UNCLOS provisions than historical claims.  Given the lack of finality in either of these outcomes, it is worth noting that, as the Tribunal continues to deliberate, diplomatic relations between China and the Philippines have deteriorated sharply.  Thus, in the long term, arbitration may serve only to forestall armed conflict without remedying the political, economic, and diplomatic factors that could bring it to fruition.

Regardless of whether the Tribunal is able to resolve competing SCS claims in any lasting sense, it nonetheless represents a prime example of international arbitration as an equalizer between economically or militarily disparate rivals.  The Philippines cannot hope to compete with China in a show of maritime force in the SCS, but has the opportunity to find some slice of equity through international mechanisms.  Similarly, the diplomatic partnership between Vietnam and the Philippines, supported by the United States, demonstrates that UNCLOS can provide an opportunity for regional cooperation with or without Chinese participation.

 

Photo Courtesy of Storm Crypt (License)


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