The Day After: The Fallout From the Philippines Arbitration Case Against China
What compels compliance with rulings based on international law? There are two camps that hold distinctly divergent views on the issue. Rationalists believe that nations choose to comply or not based on fear of punishment in the form of sanctions, international enforcement, or other material costs. Constructionists, on the other hand, believe that nations choose to comply with international law because they want to follow norms and existing rules of behavior, or fear the reputational costs of non-compliance.
The impending Permanent Court of Arbitration (PCA) ruling at the Hague in a dispute between the Philippines and China over maritime features in the South China Sea will either be one of the most consequential decisions ever meted out by the PCA or one of the most inconsequential. The ruling is expected to be released July 12. How China and other countries respond in the aftermath of the decision, expected in the coming days, will also to a large extent determine which theoretical camp of international law is proven correct regarding compliance with and the value of international maritime law treaties, in this case the United Nations Law of the Sea Convention (LOSC).
This article will attempt to forecast several plausible rulings by the PCA and their impacts on the behavior of China, regional actors, and to the United States.
The Philippines seeks a declaration, first and foremost, that both countries’ respective rights and obligations with regard to the waters, seabed, and maritime features of the South China Sea are governed by the LOSC and that China’s claims based on “historic rights” – as manifested by its so-called “nine-dash line” – are inconsistent with the convention and therefore invalid.
Second, the Philippines seeks determinations as to whether certain maritime features claimed by both countries can be characterized as “islands,” “rocks,” or “low tide elevations (LTEs).” If these features are determined to be “islands” under the convention, for instance, they could generate an exclusive economic zone (EEZ) or entitlement to a continental shelf. If, however, those features are found to be “rocks” they would only be capable of generating a 12 nautical mile territorial sea. If considered an “LTE,” on the other hand, they would be incapable of generating any maritime entitlements at all. Most of the features that China currently occupy are generally known to be either “rocks” or “LTEs” – at the most giving China a 12 nautical mile maritime zone from any of the features. The court will most likely issue a ruling that island reclamation activities that add land to the feature will not change the underlying characteristic of that feature. If the court finds that none of China’s occupied features are entitled to an EEZ, such a ruling would strip China of most of its maximalist maritime zones covering almost the entire South China Sea, areas that China sometimes refers to as a “restricted military zone” that it uses as justification to prevent freedom of navigation operations of the United States Navy and others.
And third, the Philippines seeks a declaration that China has violated the convention by preventing Filipino fishermen from pursuing their livelihood in Scarborough Shoal, harming the maritime environment within Philippine territory, and performing “dangerous operations” against Philippine fishermen using law enforcement vessels.
China has refused to participate in the case and instead published a “position paper” stating its reasons for rejecting participation in the proceedings and restating its rights to historic claims to all features in the South China Sea. The PCA has made clear, however, that “absence or failure of a party to defend its case shall not constitute a bar to the proceedings,” meaning China is still a party to the arbitration and shall be bound by any award the tribunal issues.
It should be emphasized that the tribunal will not rule on the underlying sovereignty disputes in the South China Sea (who owns what) or on sea boundary delimitations (overlapping maritime rights between nations). For the former, the PCA does not have jurisdiction to rule on disputed sovereignty claims. For the latter, China explicitly exempted itself from compulsory dispute resolution of a wide range of issues, including delimitation of maritime boundaries, when it invoked Article 298 of the LOSC. The Philippines is simply seeking a ruling on which maritime zones states can claim under the LOSC, and which rights and jurisdiction states have to explore and exploit the natural resources in and under the waters in the South China Sea.
China’s Post-Ruling Response
Immediately after the ruling – assuming the court rules in favor of the Philippines on most counts as many predict – China will likely commence a forceful propaganda campaign to denounce the PCA’s ruling as invalid and announce that China will not comply with the judgment. China also is expected to seek to mobilize as many supporters as possible to support its stance against compulsory dispute settlement, as it already has begun to do. This move can be anticipated with certainty.
What concrete actions China takes in the months and years ahead are more difficult to forecast.
The most unlikely response is for China to deescalate its actions and rhetoric. Under this scenario, China would be cognizant of the international reputational costs and seek to demonstrate to the world its intent to follow international norms of behavior and rules under the LOSC.