Legal route to resolve South China Sea dispute a political minefield
Simon Tay says the Philippines' decision to take its South China Sea island dispute with China to UN arbitration will set in motion a legal process that, unless carefully managed, could lead to political fallout
The legal process begun by the Philippines to challenge claims by China to the South China Sea surprised the region. International arbitration is allowed under the UN Convention on the Law of the Sea, but the move adds urgency and new elements to a trying political scene.
Relations between the two nations over competing claims have been tense in the past year, with vessels standing off for months near Scarborough Shoal. The issue also affected Asean unity last year, when then chairman Cambodia could find no compromise wording for an official statement.
What does this new move portend? At first glance, it is a legitimate step, supported by the various calls for parties to use international law, rather than force. China has accepted the UN convention and now faces a difficult choice.
Arbitration for this sea treaty is compulsory and a timeline will unfold in the coming weeks in which the International Tribunal for the Law of the Sea will require arbitrators to be nominated and a schedule set out for the case. If Beijing refuses to participate, these proceedings can still go ahead without it.
If China does take part, it can challenge the questions that can be addressed. The scope of jurisdiction in this particular provision is limited and cannot include issues like sovereignty over the rocks.
Even if China participates and loses, it can refuse to comply and there will be no penalties or police to enforce the ruling. Global public opinion could, however, be affected. Manila's legal move must therefore be seen in a broader political context.
Some Chinese will suspect a conspiracy or concert against them. The United States' rebalancing to the region has co- incided with the resurgence of the long-standing disputes in the South China Sea. Philippine President Benigno Aquino has invited American forces to consider arrangements to visit his country for extended periods. This is in sharp contrast to the past Corazon Aquino administration that ordered the closure of US bases.