Why Beijing should let international law reign in South China Sea
April 15, 2014 00:00 By Ziad Haider Foreign Policy W
Tensions continue to roil Asia's waters, but they are now also finding their way into international arbitration. The perilous churn in the South China Sea, dubbed "Asia's Cauldron" by one leading strategic analyst, stems from the overlapping claims of
Negotiations over a maritime Code of Conduct to stabilise interactions in the South China Sea have been outpaced by the jockeying of ships between China and the Philippines. In the wake of a dangerous and asymmetric two-month stand-off over the disputed Scarborough Shoal beginning in April 2012, Manila has rightly sought recourse in international law to manage the dispute through arbitration. For the sake of regional stability and its own interests, Beijing should follow suit.
The legal wrangling started in January 2013, when the Philippines notified China of its intent to bring a challenge under the UN Convention on the Law of the Sea (UNCLOS), an international treaty governing the rights and responsibilities of states in their use of the oceans and seas. (Both China and the Philippines are parties to UNCLOS, while the United States has yet to ratify it.) The Philippines argued then that China’s so-called nine-dash line, which encompasses virtually the entire South China Sea, was unlawful and contrary to UNCLOS.
China’s response was to reject the Philippines’ notification letter altogether, noting Beijing had opted out of UNCLOS procedures for settling disputes that involve sovereignty claims or maritime boundaries.
Beijing must now take a clear and hard look at the merits of abstaining any further. While it may have a legal basis to abstain, acting on it could be strategically short-sighted. Given Beijing’s assertions that its nine-dash line is grounded in international law, a greater show of confidence would be to defend its position before a neutral tribunal.
Beijing will have the chance, if it chooses. Despite China’s protestations, a five-member Arbitral Tribunal was assembled to hear the Philippines’ claims; on March 30, the Philippines announced that it had filed its brief, here called a Memorial, elaborating its challenge. (Intriguingly, Beijing may have asked Manila to delay filing its Memorial in exchange for a mutual withdrawal of ships from the contested Scarborough Shoal.)
China’s willingness to abide by international norms would not only telegraph confidence, but could help offset the growing anxiety generated by its military modernisation and manoeuvrings among neighbours who fear the Beijing doctrine may be veering toward realpolitik. For its part, the United States has expressed its support for the Philippines’ submission. President Barack Obama’s visit to the Philippines in late April will provide an opportunity to reaffirm the importance of such a rules-based approach to managing the dispute. Yet that largely depends on how Beijing responds.
To be sure, nationalist public sentiment stoked by Beijing may have painted China into a corner. Hours after the Philippine Foreign Secretary announced the Memorial’s submission on March 30, the Chinese Foreign Ministry responded that it did not accept the Philippines’ submission of the dispute for arbitration and called on the Philippines to return to bilateral talks. With its Foreign Minister stating that China will never accede to “unreasonable demands from smaller countries” in the South China Sea, its Defence Minister stating that China will make “no compromise, no concessions”, and official media outlets wading in with criticism of the Philippines’ “unilateral” actions in filing its Memorial, it will be that much harder to backtrack. Yet submitting to an international tribunal is by no means beyond the pale for Beijing. China regularly engages in the WTO dispute settlement system and has a relatively strong compliance record in the face of adverse rulings, largely due to the reputational costs of non-compliance.
Arbitrating the South China Sea dispute is assuredly more fraught than commercial disputes, grating as it does on China’s rawest nerve: territorial sovereignty. That is why it must be complemented by all claimant states exploring the equivalent of an amicable settlement: shelving questions of who owns what and focusing on joint development of resources for which compelling precedent exists. For now, however, Manila’s lawyers have staked out important legal ground in the South China Sea. Beijing should consider meeting them there.
Ziad Haider is Asia director of Washington-based think-tank the Truman National Security Project.