South China Sea: Is China Willing to Make a Deal?
As we say in America, the People’s Republic of China (PRC) got utterly waxed by the UNCLOS Arbitral Tribunal award in Philippines v. China. “Waxed” as in “knocked prone, utterly flattened, finished off, now part of the floor, incapable of offering resistance, not a factor.”
In fact, as observers noted, the commission went above and beyond the call of duty and the scope of the Philippine pleading to assert that there were absolute zero features in the Spratly Islands—the cluster of reefs, atolls, and whatnot off the Philippines that China calls the “Nansha Islands”—that merited classification as anything more than a rock.
Even Itu Aba Island a.k.a. Taiping Island, Taiwan’s flagship holding in the Spratlys, was denied island status, despite holding a 600-person garrison sustained by four wells reputedly capable of pumping out 65 tons of water a day and certainly making a plausible case that it could “sustain economic life.”
No “island” status means no 200 nautical mile Exclusive Economic Zone for the “feature” regardless of who controls it.
And that means that for the Philippines, there are no overlapping/conflicting EEZ claims standing in the way of its immediate assertion of its unambiguous and uncontestable EEZ extending into the South China Sea from its archipelagic baseline and covering much of the Spratlys.
That, I suspect, was the point of the commission award.
Cognizant of the fact that the PRC had boycotted the proceedings, aware that the PRC had publicly, repeatedly, and vociferously stated its intention to disregard the ruling, perhaps unofficially contacted by the PRC to receive a heavy-handed threat that an adverse ruling might trigger a PRC withdrawal from UNCLOS and a collapse of the treaty, chafing under PRC accusations of illegitimacy and bias…
…perhaps acting on the assumption that any other arbitration proceedings by other claimants subsequent to the Philippine case would be nothing more than occasions for futile delay and indeed simply provide the PRC more time to consolidate its illegal position in the South China Sea and flout the rights of the claimants…
…maybe the commission decided to make a clean sweep of the PRC case and leave a completely open field for the Philippines and, indeed, everyone else.
China problem solved, in other words, forever. With the nine-dash-line invalidated and the Spratlys out of the picture, the PRC maritime rights in the South China Sea are cut back to a little nubbin between the Vietnamese and Philippine EEZs plus the twelve-mile limits around the various rocks it occupies.
Call it a scorched earth ruling on the South China Sea. And an unpleasant surprise, it appears, for the PRC.
Immediately subsequent to the ruling, the State Council disgorged a lengthy, detailed white paper that appeared to abandon the nine-dash-line principle with a claim based on PRC sovereignty over the Spratlys as an archipelagic cluster, in other words, a big fat wad of territory in the South China Sea that would merit an archipelagic baseline circumscribing the area as a whole and a big, fat unitary EEZ impinging on the Philippine EEZ.
It now looks like a non-starter.
With the Spratlys deemed underserving of anything more than “rock” status, it seems the “archipelago” dreams are in the rubbish. It should also be noted that it would be extremely unlikely that UNCLOS would have granted archipelagic status (reserved for dense, populated island groups like the Philippines) to the Spratlys.
But maybe the PRC strategy was to introduce another point of plausible dispute and litigation and string this thing out until everybody yielded to Chinese intransigence and cut a deal.
Well, that’s not happening. And maybe pre-empting Chinese delay and obfuscation was the commission’s intention.
Judging by the regional reaction—“Ooooh!”—I think the other South China Sea claimants were equally surprised and perhaps also somewhat taken aback by the scope of the arbitration award.
For President Duterte in the Philippines, the award is something of a poisoned chalice. With the Philippine EEZ issue settled, he has little leeway to trade concessions with the PRC without receiving criticism and worse from his critics. Even when it looked like the arbitral award might leave some room for horse-trading, Philippine legal eagles were already threatening impeachment if Duterte compromised the Philippines’ sovereign rights by cutting deals with China.
Instead, the logic of the UNCLOS ruling would dictate that the Philippines demand that the PRC vacate two elements in its “Great Wall of Sand”, Mischief Reef and Subi Reef, since they are artificial islands inside the Philippine EEZ built on top of below-water features, and enjoy no legal sovereign status as islands, rocks, or whatnot.
If Duterte sends out a military force to evict the PRC and the PRC resists, then we’re skating close enough to invoking the US-Philippine Mutual Defense Treaty (which is supposed to cover situations when Philippine forces “come under attack” outside of Philippine territory but not offensive operations) to make pivoteers’ hearts go pitty-pat.