By Holly Reeves
If the nine-dash line which marks China’s claim to the South China Sea is dead in the water, what happens next?
A United Nations court of arbitration is almost certainly about to rule that China would have to rewrite its map of disputed seas off its south-eastern coast in favour of recognising a claim by the Philippines. This is not a ruling on who owns what, but rather on access to waters which carry $5 trillion worth of shipping each year.
But a success in court for Manila would be just one skirmish in a much larger battle. China – in repeating its mantra of indisputable sovereignty – has already said, many times, that it does not recognise the court’s jurisdiction. It wants bilateral discussions. And the political winds may be in Beijing’s favour on this.
If the widely-supported Rodrigo Duterte wins upcoming presidential elections he says that he will sit down with China to resolve the dispute – if the current multilateral discussions do not bear fruit within two years.
But he also plans to use the Philippines’ alliance with powerful Western nations, notably the US, to get Beijing to accept his country’s position. That heats up the conversation. American boats are already in the area, watching and waiting to see what happens.
China’s options
What are the options on the table for a defeated China?
James Holmes, professor of strategy at the US Naval War College explains, “it could simply ignore the decision. The United Nations Convention on the Law of the Sea (UNCLOS) has no power to enforce any ukase.
“Little would change in practical terms, except that Beijing would have affirmed that it believes might makes right. Whatever happens, China has got the Maxim gun and the Philippines has not. What’s Manila gonna do about it?”
Failing which, “it could make a formal reply, restating how China’s historic territorial rights antedate and thus supersede UNCLOS and so forth. The usual applause line about the United States’ remaining outside the convention could go in as well.”
There is also the “nuclear” option of withdrawing from the treaty altogether. This is probably the least likely outcome as China does benefit from the protection of UNCLOS in many ways, and leaving requires a year’s notice anyway. That is plenty of time for other countries to file grievance claims which China would need to deal with. Leaving does not absolve it from cases opened when it was still a member.
And it is a dangerous game, says Holmes, “having a major seafaring state leap outside the constitution for the nautical domain – and attempt to subvert it within important zones on the map – could make for parlous times. What happens to the system under such circumstances, when a founding member turns outsider turns spoiler?”
Customary law
Stefan Talmon, director of the Institute of Public International Law at the University of Bonn has taken up the discussion, saying that, “[If it left] China would continue to enjoy most of the advantages of UNCLOS because today the majority of its provisions are considered to be part of customary international law.”
Mineral rights and energy are key drivers in this battle of wills. To keep the first point simple China has invested a lot of money in seabed exploration. Talmon explains, “China could probably lay claim to an outer continental shelf and its resources under customary international law but its energy companies would be excluded from exploration and exploitation.”
Stepping back from the treaty, or distancing itself from the responsibilities that come with its rights, would also make it much harder to establish claims to mineral veins found on the seabeds. When China’s industries are increasingly thirsty for these rare earths, this has to be an important consideration.
There are also the bigger picture issues. China has so far committed to a peaceful rise as a global superpower. Publicly shirking the decision of an international body, in the midst of aggressive building in the area, would not fit the current face of Chinese foreign policy.
So will a win in court really be a win for the Philippines? According to diplomatic sources, “the Philippines has no desire whatsoever to contain China. In forging a durable and equitable security architecture for the region, China’s participation is vital and China’s interests will be respected by all, provided they do not negate the interests of the region’s smaller nations.”
Success in this case therefore needs to be considered on its own terms. China is not going to back down on its claim to the sea, its resources, or the rocks within it that may or may not be considered islands.
However, a decision in the favour of the Philippines could be the leverage needed to get concessions on smaller matters, such as access for the Filipino fishing fleet to Scarborough Shoal – a group of reefs seized by Chinese vessels in 2012.
But for now, while the Philippines wants to build bridges, China is building defences. So like the American boats in foreign waters, we watch and wait for the next move.
The line is dead, long live the line.
