By Hiroyuki Sugiyama / Yomiuri Shimbun Senior WriterAre China’s claims and actions in the South China Sea violations of international law? As early as by the end of this month, a court of arbitration in The Hague is expected to hand down the first ruling on the issue in a case initiated by the Philippines based on the U.N. Convention on the Law of the Sea. The struggle between China and the international community over the “rule of law” is about to get into full swing.
In April 2012, a Philippine warship cracking down on Chinese fishing vessels got in a standoff with a Chinese government ship sent to block it near Scarborough Shoal west of Luzon Island in the Philippines. After about two months, bad weather forced the Philippine vessel to leave the area. With this, effective control of the shoal switched from the Philippines to China.
Unable to stand up to the assertive maritime advances made by China, which is backed by dominant military and economic might, the Philippines took its case to The Hague in January 2013.
According to regulations stipulated in the convention, and the Chinese government’s declaration based on those regulations that it would not accept any related procedures, the disputes over territorial sovereignty and maritime boundary demarcation are outside the jurisdiction of the court.
Consequently, Manila focused the content of its case on the illegality of China’s claims and actions.
7 artificial islands
Manila made 15 submissions to the court. The three main points in the Philippines’ case are:
■ The illegality of China’s “nine-dash line” encompassing almost the entire South China Sea.
■ The fact that the reefs over which China has effective control, including seven artificial islands in the Spratly Islands on which the administration of President Xi Jinping has been accelerating the installation of military facilities, are not eligible to have territorial waters and an exclusive economic zone under the convention.
■ China’s violation of the convention regarding the operations of its vessels and protection of the marine environment.
In October 2015, the court decided to start the process to rule on seven of Manila’s submissions, including the legal status of the reefs that include all the artificial islands. The court decided to reserve a decision on the other submissions.
The artificial islands created by China are all low-tide elevations. The United States asserts these do not have 12-nautical-mile territorial waters around them, and has sent military vessels through these waters on “freedom of navigation” patrols.
Beijing has been infuriated by these operations, which it says threaten China’s sovereignty and security. Chinese military planes have attempted to intimidate U.S. military aircraft in the region in a dangerous manner by flying unusually close to them.
If the court rejects the argument that the artificial islands have territorial waters, “freedom of navigation” will have been confirmed by a judiciary. Denying an EEZ exists will reduce actions seeking to secure rights and interests through force. From the perspective of the Xi administration, which wants to make the South China Sea “China’s sea,” this would be a damaging blow, as it would reject the legal basis for excluding other countries from the area.
Environmental protection and the use of government vessels at Scarborough Shoal, where there are concerns China could start reclamation work, also would come under the court’s ruling.
It is possible the court will make a decision touching on the nine-dash line issue, which it held off doing last year. If it rules the line is illegal, Beijing’s entire strategy for the South China Sea would lose its legal validity.
Ignoring the court
As a party to the convention, China has an obligation to obey the court’s rulings. However, Chinese officials have regularly said they “do not recognize the court and won’t participate in the arbitration” and they “won’t accept its ruling and it has no binding power.” Their reasoning that the court “has no jurisdiction on this matter” and that Manila acted “illegally” by initiating these proceedings “before bilateral discussions had been exhausted” sound like a pretext to ignore the court.
But truth be told, the Xi administration feels a strong sense of urgency over the matter. “This is unprecedented legal warfare,” a Communist Party source said.
In China, “legal warfare” is a term spelled out in military regulations. A classic example of such legal warfare is China’s argument that “Okinotorishima island in Japan is a rock and therefore an EEZ cannot be established around it,” made with the Chinese Navy’s advances into the western Pacific Ocean in mind.
The Xi administration is already developing legal and propaganda warfare strategies that seek to legitimize its position based on its own legal interpretation. Such warfare is likely to intensify after the court hands down its ruling. There are fears that China will ensure the debate does not reach an agreement, and will use time bought by this strategy to make its control of waters as far as the East China Sea a fait accompli.
The Group of Seven major nations, including Japan and the United States, plus other parties such as members of the Association of Southeast Asian Nations strongly support entrenching the “rule of law” — under which all parties are equal — in the South China Sea.
China is at risk, as U.S. Defense Secretary Ashton Carter has said, of isolating itself through its actions. However, though Xi is the only one who could correct China’s course, there has been no sign of change in the approach he has taken.
China likely will make every effort to win over Rodrigo Duterte, who will be inaugurated as Philippine president on June 30. After the U.S. presidential election later this year, it likely will explore measures to improve ties with the United States by shelving confrontations.
The court’s ruling is not the end goal. It will be the first step in bringing China, which seeks to unilaterally change the status quo, into an order based on law. The international community will need to become more united to achieve this.Speech