China vs. Philippines: What's at Stake as the Verdict in the Hague Looms

July 11, 2016 Topic: Security Region: Asia Tags: PhilippinesChinaSouth China SeaDefenseThe Hague

China vs. Philippines: What's at Stake as the Verdict in the Hague Looms

Time for Beijing to feel the consequences of its bad behavior.

In recent weeks, China has announced—many times—that it will ignore the ruling of a panel convened by the Permanent Court of Arbitration in Philippines v. China .

The panel, Beijing says , is a “law-abusing tribunal,” the case is a “farce,” the award “amounts to nothing more than a piece of paper .” Said Chinese Foreign Ministry spokesman Lu Kang on the ruling, “We will not accept it or recognize it.”

The decision from The Hague is expected in a few hours.

The case will, among other things, determine the legal status of a handful of land features in the contested South China Sea. Yet China’s anticipatory repudiation has significance far beyond the matters to be determined by the panel.

In short, Beijing, with its declarations that it will ignore the court’s findings, looks set to put itself outside the international community.

That community now needs to think about what it will do to defend the systems of laws, resolutions, pacts and treaties that make up the world’s rules-based order. Nations, in general, should begin imposing costs on China for its renegade stance.

The Philippines, as a signatory to the UN Convention on the Law of the Sea, brought the action in 2013, just months after Beijing seized Scarborough Shoal. The shoal, 124 nautical miles from the main Philippine island of Luzon, guards the strategic Manila and Subic Bays and was long thought to be part of the Philippines.

In early 2012, Chinese vessels surrounded the shoal, as did those from the Philippines. American officials persuaded both sides to withdraw their craft, but only Manila complied, thereby permitting the Chinese to seize the feature. The United States, seeking to avoid confrontation, decided not to hold China accountable for its deception, essentially an act of aggression.

China was not satisfied with its prize, however. After seeing no opposition at Scarborough, it increased pressure on Second Thomas Shoal, off the coast of Palawan, also in the South China Sea. There, Manila in 1999 grounded a World War II–era landing ship, the Sierra Madre , and placed a small detachment of marines on board to mark sovereignty. The Chinese have been trying to prevent resupply of the troops.

The Philippines, which could not hope to compete with China ship for ship even in its own waters, chose lawfare. At first, Beijing did not grasp the significance of the case filed by the now-departed Aquino administration, but China eventually realized its importance and contested the jurisdiction of the Court, filing a position paper in December 2014.

Beijing, as was its right, did not accept arbitration delimiting sea boundaries when it ratified UNCLOS, as the UN sea convention is known, in 1996. Yet by ratification it implicitly accepted arbitration of other matters. Last October, the arbitration panel ruled it had jurisdiction on seven of the fifteen matters raised by Manila. Since then, Beijing withdrew and has not participated in the substantive phase of the case.

Most observers expect the Philippines will prevail on at least most of the matters to be decided. China’s positions on South China Sea issues, after all, are generally inconsistent with the UN convention, not to mention customary international law. Beijing’s “cow’s tongue”—the name informally given to about 85 percent of the South China Sea within either nine or ten dashes on official maps—includes features claimed by five other states and abuts other nations in locations far from Chinese shores.

Perhaps an adverse ruling will persuade the Chinese to negotiate its claims, as many hope, but that’s unlikely. Beijing in recent years has announced intransigent positions that allow no compromise, and in fact China has never settled a South China Sea claim except to issue a clarification that the Natuna Islands, but not their surrounding waters, belong to Indonesia.

As the controversial Hugh White of Australian National University notes, Beijing’s repudiation raises “the obvious question.” What happens, he asks, when China ignores the expected ruling?

The answer, most unfortunately, is nothing. Too many times in the past, the international community has allowed China to cherry-pick, to obtain the benefits of agreements it signed while ignoring the obligations it did not like. And rarely did other parties impose meaningful costs on Beijing for such blatant disregard of commitments. Because countries shied away from holding China accountable, Beijing this time feels it can ignore the UNCLOS ruling with impunity.

What’s the rationale for such meek behavior? Countries wanted to entice the Chinese into accepting global norms.

The thinking underpinning today’s policies was set decades ago. “Taking the long view, we simply cannot afford to leave China forever outside the family of nations, there to nurture its fantasies, cherish its hates, and threaten its neighbors,” Nixon famously wrote in Foreign Affairs in 1967.

He was correct then, but now China, inside the family, is still nurturing, cherishing and threatening. And at the same time it is taking down—from the inside now—the legal norms that the world took a century to put in place.

Yes, China is large and should have a voice—the argument that Beijing often makes for inclusion in agreements—but Beijing is using that voice irresponsibly. The only thing worse than having China outside the community of nations is having it inside and shaking it from within. At the moment, that is exactly what is happening.

China says it has “no intention to unravel the system or start all over again,” to borrow the words of former diplomat Fu Ying, speaking on behalf of Beijing. As she told a Chatham House audience in London this month, “China has a strong sense of belonging to this UN led order system, as China is one of its founders and a beneficiary, a contributor, as well as part of its reform efforts.”

Those words are what we want to hear, yet by flouting UNCLOS, a UN-sponsored pact, China is demonstrating that it does not believe it should be bound by its rules, and its defiance is helping to unravel “the order system.” Bilahari Kausikan, a Singapore diplomat, understands that China’s reaction is “a matter of wider significance than the South China Sea.” As he told the New York Times , “The importance of the issue is whether international rules will be obeyed.”

As long as there is no penalty for violation, China will not obey those rules to its detriment or enmesh itself into the international system of norms, laws, treaties and conventions.

So what is the remedy? The ultimate answer is, in some fashion, to impose costs. In the South China Sea matter, the first cost to be imposed should be expulsion from UNCLOS. The convention, like many agreements of its type, has no provision permitting that remedy, however. It has some enforcement mechanisms for various matters, but they would not be effective for China’s defiance of an arbitral award.

Perhaps now is the time for extraordinary economic pressure on Beijing, especially because its economy is showing signs of stress. And at a minimum, countries should not sign new agreements with Beijing while it continues to act like a renegade. China, due to thuggish behavior, should be shunned.

Yet shunning is not much of a punishment for a regime determined to get its way, no matter what. The international community has no Plan B for Chinese disregard of norms, and policymakers and analysts are not even talking about developing one. This is a conversation we must now have.