Legal warfare (“lawfare”) in the South China Sea has reached a critical stage. The Philippines has gone full force in using the language of the law to rein in Chinese territorial claims, dispatching its top officials from across all branches of its government to the Arbitral Tribunal at The Hague. Bereft of any tangible capabilities to optimally defend its territorial rights, the Southeast Asian country has embarked on a years-long quest to peacefully manage its territorial disputes with China.
Banking on more than two years of extensive legal preparations, which gave birth to thousand-page-long memorial and supplemental arguments, the Philippines is trying to convince the arbitration body that the merits of its case deserve to be adjudicated upon. But beyond the ambit of Philippine-China territorial disputes, what is at stake is the necessity to ensure all modern nation-states adhere to their treaty commitments under prevailing legal principles. As signatories to the United Nations Convention on the Law of the Sea (UNCLOS), China and the Philippines, which ratified the convention in 2006 and 1984 respectively, are expected to make maritime claims and resolve their disputes based on modern international law, not obscure doctrines from the pre-modern age or shady maps from the colonial era and/or those concocted by hyper-nationalist elements.
The Philippines, however, has to overcome a key obstacle: To prove that its case against China falls under the jurisdiction of arbitration bodies under the aegis of UNCLOS. The arbitration body, meanwhile, should exhibit that it is a viable mechanism to peacefully resolve disputes in accordance to a universally accepted and negotiated body of laws. Underlining the great importance of the ongoing arbitration, Japan, Malaysia, and Vietnam—nations that happen to also be locked into bitter territorial disputes with China—have sent observers to the hearing. It is a struggle over whether the 21st century global order will be defined by rights of nations and commonly-accepted norms of behavior or instead by the military might of belligerent powers.
Taking on China
The Philippines takes huge pride in becoming the first nation to have dared to employ compulsory arbitration (under Article 287 and Annex VII of UNCLOS) against mighty China. Its quest to leverage UNCLOS as an instrument to rein in China's territorial assertiveness has been praised by nations across the world, including the United States, which has not ratified the UNCLOS (thanks to intransigent legislators in the Senate), but observes its key elements as a matter of customary international law.
Though China has boycotted the entire proceedings—refusing to recognize the jurisdiction of UNCLOS vis-à-vis the South China Sea disputes—the arbitration proceedings (under Article 9, Annex VII) have nonetheless moved forward. Unable to stop the arbitration proceedings, and refusing to participate in it despite multiple opportunities to formally submit its counter-arguments, China has employed a variety of measures to discourage the Philippines from sticking to its course, from refusing to host (“disinviting”) Philippine President Benigno Aquino during the 2013 China-ASEAN Expo to employing various forms of intimidation in the contested areas as well as imposing a de facto investment siege on the Southeast Asian country.
In terms of the merit of its claims, it is doubtful whether China is confident of the legal validity of its sweeping claims under the notorious nine-dashed-line doctrine. As a leading European legal expert, Professor Alexander Proelß, recently told me, “I do not believe that China will manage to provide the necessary evidence concerning all territorial features and marine areas” it appears to be claiming across the South China Sea basin. Not only are China’s claims, based on the notion of “historical rights/waters,” well beyond its coastal waters and 200 nautical mile Exclusive Economic Zone (EEZ), they also clearly fall short of fulfilling requirements such as the explicit acquiescence of neighboring states as well as the continuous and effective demonstration of Chinese sovereignty/occupation over all of the groups of islands, from the Paracels to the Spratlys, within the nine-dashed-line.
Many of China’s neighbors gained independence only in the mid-20th century, and since then hardly any of them have openly renounced their claims in the South China Sea (though oil-rich Brunei has tried to avoid any conflict with its bigger neighbors by adopting a very low-key position over its claims in the area). In fact, countries likes the Philippines were among the first sovereign nation-states to have built airstrips and other forms of demonstrable occupation on key features (i.e., Thitu Island) in the Spratly chain of islands. During the 19th century, European powers, particularly France and Britain, were the ones that enjoyed significant access to, if not total control of, the disputed features in the South China Sea. In fact, the Chinese names for the disputed features in the South China Sea are largely crude transliteration of original English names (see Bill Hayton’s excellent book: The South China Sea: The Struggle for Power in Asia).
There are many reasons for China to try to avoid defending its indefensible sweeping claims in an international court. So in order to sabotage the Philippines’ case at The Hague, China has astutely employed technicality/procedural arguments, publicized in its December 7, 2014 position paper, which can be read as an informal counter-memorial. China argues that the Arbitral Tribunal doesn’t have jurisdiction over the Philippines’ case to begin with.
Aside from pointing out that arbitration bodies under UNCLOS don’t have the mandate to address sovereignty-related (title to claim) disputes, China has also reiterated its 2006 declaration that it is exempting itself (Article 298) from compulsory arbitration regarding territorial claims. China is also arguing that the Philippines has prematurely sought compulsory arbitration when alternative mechanisms, such as negotiations through bilateral channels or multilateral fora (i.e., the Association of Southeast Asian Nations), haven’t been exhausted. China wants to nip any legal challenge in the bud.
To overcome the jurisdictional hurdle, the Philippines has tried eschewing the whole sovereignty question by directly taking on China’s nine-dashed-line claim and seeking the opinion of the Tribunal on the determination of the nature of contested features in the South China Sea. Both China and the Philippines have rejected the option of taking their disputes to the International Court of Justice (ICJ)—the body that can rule on title to claim disputes—on sovereignty questions.
Age of Uncertainty
Among the Philippines’ many arguments, two stand out. First, it wants the Tribunal to determine (under Article 121 of UNCLOS) whether the disputed features in the South China Sea are low-tide elevations, rocks, or islands. This would have a huge impact on the question of maritime entitlement zones. If they are low-tide elevations, then they can’t be appropriated; high-tide elevations and rocks can generate up to 12 nautical miles territorial sea, while naturally-formed islands can generate their own 200 nautical EEZs. The Philippines contends that most of the contested features are low-tide elevations, and only some are rocks that can generate their own territorial waters.
China, however, tends to characterize most of the features as islands, which can generate their own EEZs, while artificially transforming rocks and atolls into islands, which can host their own airstrips and advanced military installations (though these artificially-built “islands” are not legally admissible, they clearly provide operational advantage). In the last two years, China has reclaimed a whopping 810 hectares on a whole host of features across the South China Sea, which, in the word of the U.S. Secretary of Defense Ashton Carter, is "more than all other claimants’ [construction activities] combined...and more than in the entire history of the region.”
Perhaps of greater significance is the Philippines’ argument that China’s sweeping claims aren’t consistent with modern international law, and therefore should be either clarified/adjusted or entirely invalidated by the Tribunal. Up to this day, China’s nine-dashed-line claims lack both precision and consistency (see the U.S. State Department’s December 5, 2014 position paper).
China has yet to pinpoint the exact coordinates of its claims. Also, it hasn’t clarified whether it is claiming the entire South China Sea basin or, less expansively, primarily the features and their surrounding waters, or solely the fisheries and hydrocarbon resources across the area. China is yet to clarify the distinction between “historical waters” and “historical right,” terms which it tends to use interchangeably but could actually have very different implications. Many neighboring countries believe China is claiming all of the above. Unless China clarifies its nine-dashed-line claims, it would be very difficult to negotiate even Joint Development Areas (JDAs), which could serve as a potential resolution to the seemingly intractable disputes.
If the Philippines manages to overcome the jurisdictional hurdle, then China will be vulnerable to similar suits by Vietnam, which is closely watching whether a legal option is viable at all. The Tribunal, however, is under tremendous pressure. On one hand, if it dismisses the Philippines’ case entirely, then the viability of UNCLOS as a uniform set of rules for governing the world’s oceans will come under question. If the Tribunal rules too unfavorably against China, then there is a risk, as Columbia University’s Matthew C. Waxman puts it, that the arbitral tribunal would be "ignored, derided and marginalized by the biggest player [China] in the region." So this is a very difficult balancing act for the arbitration body at The Hague. Bereft of any compliance-enforcement mechanism, the Tribunal is in no position to coerce China into compromise. At best, it can only use the language of law to embarrass a rising and ambitious power.