2013: Manila, Beijing, and Unclos

Security in East Asia  -  China - USA - usw
Source: The Asia-Pacific Journal, Volume 11, Issue 34, No. 1, August 26, 2013.

Manila, Beijing, and Unclos: A Test Case?
マニラ、北京、そしてUNCLOS(国連海洋法条約) 一つのテスト・ケース

Alex Calvo

Hier nur "Introduction" und "Conclusion". For the full article go to pdf-file. 

Introduction: International law and the South China Sea
After a long summer replete with tensions and incidents in both the South China2 and East China Seas, the new year failed to bring renewed hopes for a peaceful resolution to the myriad territorial conflicts casting a shadow on the Asia-Pacific Region. Rather the contrary, renewed incidents, naval rearmament, claims and counterclaims, not always veiled threats to resort to force, and decentralized boycott campaigns and cyberspace clashes. One novelty was the decision by the Philippines to try a new tack in its clash with China, resorting to a tool not previously employed by any of the claimants,3 namely a request for arbitration under UNCLOS (the United Nations Convention on the Law of the Sea). Although this gambit was rejected by China, and the fate of the case is uncertain at the time of writing, we will examine the legal positions of Manila and Beijing in the context of their wider dispute, and the far-reaching implications of the case.4 

The request had to take into account China’s decision to opt out of UNCLOS arbitration on certain issues pertaining to their conflict, above all the exact delimitation of maritime borders. Although the Philippines’ arbitration request did not thus refer to maritime boundaries per se, it is still not completely clear whether the International Tribunal of the Law of the Sea (ITLOS) will accept the case. An arbitration tribunal, made up of five judges, has been convened, but has not yet ruled on whether it has jurisdiction. Of particular interest in light of the ongoing China-Japan territorial conflict over Diaoyutai/Senkakus is the fact that ITLOS is headed by a Japanese judge. Although not a party to the South China Sea dispute, Tokyo has provided a measure of support on maritime issues to Manila and Hanoi in recent years. 

Some see the case as a test of whether international law and tribunals such as ITLOS can contribute to peaceful resolution of outstanding territorial disputes in Asia in a time of profound transformation. It is particularly relevant in view of the disparity in size and military potential between the Philippines and China, although the former is supported by other powers.

The decision by Manila to initiate international arbitration proceedings against Beijing under UNCLOS marks a turning point in the long-standing dispute over the South China Sea, or more broadly over the different bodies of water surrounding China. This is even clearer when seen in conjunction with other recent developments such as the Chinese decision to start employing patrol planes and embarked helicopters (operating from Coastguard cutters) around the Senkaku Islands, Tokyo’s provision of patrol boats to the Philippines, and Japanese Prime Minister Abe Shinzo’s recent reference to the Falklands in an address to Parliament. Broadly speaking, we are seeing a widening of the actors involved, and of the methods, both diplomatic and military, they are resorting to.
Beijing had repeatedly warned Manila not to resort to arbitration, and as expected has refused to take part in the case. The question remains whether ITLOS will nevertheless appoint an arbitration tribunal, in China's absence, as UNCLOS seems to permit.  At the time of writing a five-member panel has been convened. Thus, the case may ultimately result in an award in absentia. However, before that happens, the five judges will have to meet and determine whether they have jurisdiction over the case. A Japanese judge currently heads ITLOS, adding a further twist to the story, given Tokyo's support for Manila and Hanoi. Some say that a ruling in favor of the Philippines would be pointless since it is unlikely that it will ever be implemented. Other voices, particularly in the Philippines, acknowledge this possibility but hope that such a ruling would provide ammunition in the long running soft power battle between Manila and Beijing. There are even fears that pushing Beijing too far may result in her leaving UNCLOS, leading to additional tensions and growing possibilities of open conflict. Others see the arbitration as a chance to put Beijing on the defensive, countering not only the message that the South China Sea belongs to China, but also the narrative that portrays Beijing as a responsible moderate power seeking to resolve territorial disputes through dialogue. Between these two extremes, there are those who hope that the case, together with other developments, from rearmament by countries like the Philippines to Chinese pragmatism in the Arctic, may lay the foundation for a negotiated solution to the South China Sea dispute. This third view may be based on the idea that such a solution requires a more robust posture, and military capabilities by other claimants and interested third parties, but at the same time the realization that trying to push Beijing into a corner would be counterproductive.
On an even more general plane, the case may constitute a turning point for the law of the sea (or more widely, public international law) and for relations between China and other countries. With regard to the law of the sea, the core of the Filipino case is the incompatibility between UNCLOS (and customary law) and China’s concept of a “nine dash line”, which Manila claims has no place in that convention. Should ITLOS rule accordingly (a possibility, since there is indeed nothing similar in the text of the convention) Beijing may just ignore the award. In an extreme case, although this seems unlikely, she could also react by withdrawing from UNCLOS. Less dramatically, China could also harden further her attitude toward Western-inspired international law and institutions. In a way, since the late 1970s Beijing has been playing a balancing game between her desire to recover her status as a great power, and her need to play by the rules of the US-dominated post-WWII system in order to rehabilitate her economy and shore up her soft power. To a great extent she has been successful. A ruling against China, however, could make such a balancing act much more difficult. On the other hand, should the case prompt renewed negotiations, it could facilitate a peaceful multilateral settlement of the South China Sea issue. In that case, despite the initial tensions, it could enable China to recover her great power status in parallel with growing influence on, but no dramatic break from, international law.
China is not, however, the only actor that is walking a careful line. Washington and its allies have also been employing a two-pronged approach to the PRC. On the one hand, they have opened their markets, invested massively, and generally welcomed Beijing into the international community including the United Nations Security Council and the World Trade Organization. This was first motivated by the US desire to play off Beijing against Moscow, and later by a dense web of interlocking economic interests, ranging from massive debt purchases to widespread investment in China and industrial relocation. The result is a complex relationship, involving cooperation and competition.  The latter includes insisting on freedom of navigation, and disputing by word and deed China’s interpretation of coastal rights in an EEZ, as well as rearming or helping China's neighbors rearm. By rearmament we not only mean the acquisition and deployment of additional weapons systems, but also moral rearmament, as Abe’s frequent references to Margaret Thatcher make clear. In a way, they have been trying to shape and constrain, without ultimately blocking, China’s ascent. While this may seem reasonable from these countries' perspective, it is easily seen by Chinese observers as undue interference in the country, reminiscent of past interventions. The case may also raise questions about the sustainability of such policies.
The Philippine’s submission ultimately prompts the question of whether right or might will determine the fate of territorial claims in the South China Sea. The question is whether international law and diplomacy will play a significant role in securing a peaceful settlement, or at least an interim compromise that countries can live with for some decades, or whether it will be pushed aside leaving the fate of this area to be determined by force of arms. The answer to this question need not be black or white, in the sense that international law does not operate in a vacuum. While made of rules and institutions, it reflects at least to some extent the balance of power at any given time. The case could also end in a compromise agreement featuring international law and the simultaneous amendment of international law. A wide range of options remains open. Countries are rearming, yet they keep talking. Beijing is increasingly robust in some areas, while pragmatic in others like the Arctic. The Philippines themselves is a good example of the complex mix of policies followed by governments. She initiated arbitral proceedings, yet at the same time is rearming and negotiating regular troop rotations with the United States and Japan. A glimmer of hope may be found in the fisheries agreement between Taiwan and Japan, an arrangement which Taipei is seeking to replicate with Manila and which is a practical implementation of the principle of “economic cooperation today, talks on sovereignty later”.
What is clear is that, whichever scenario prevails, the consequences will be felt throughout Asia and the Pacific and beyond for decades to come.