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CommentInsight & Opinion

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

PUBLISHED : Tuesday, 29 January, 2013, 12:00am
UPDATED : Tuesday, 29 January, 2013, 2:55am

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.

Japan's role will also be questioned. Representing the new Shinzo Abe administration, Foreign Minister Fumio Kishida chose Manila as his first overseas visit. There, he promised to provide coast guard vessels and found a welcome for the idea that Japan should re-arm.

This comes amid increased tension between Tokyo and Beijing over the Senkaku/Diaoyu Islands. Some will therefore question the coincidence that the legal challenge has come so soon after the visit. Another coincidence is that the tribunal for the law of the sea has a Japanese national as its president - Shunji Yanai - although he is not under instruction from Tokyo.

It is therefore for the better that steps be taken to stabilise relations. The new Chinese Communist Party chief, Xi Jinping , has called for co-operation to handle "sensitive" issues effectively and in a timely manner. This came when China received Natsuo Yamaguchi, leader of the New Komeito party, the junior coalition member in the current government.

The future tenor of US-China ties is harder to read as key appointments to the state and defence departments are still pending and new Chinese leaders are settling in. President Barack Obama did, however, set clear priorities in his inaugural address that focus on domestic issues. Moreover, having trumpeted the coming end to a decade of war, Obama should be cautious about engaging in potential Asian conflicts, even if allies wish otherwise.

In this context, it is critical that the Association of Southeast Asian Nations maintains its neutrality. Although the Philippines is a member of the group, others in Asean - whether collectively or individually - were not consulted on the legal challenge. The Singapore government, for example, has said it first heard about it through the media. Manila's right to take this route was also acknowledged as its own national decision.

However, Asean neutrality cannot mean inactivity. On the contrary, the current Asean chair - Brunei - must work with others in the group to rebuild trust, with the aim of beginning negotiations on a code of conduct for activities in the contested areas.

Last year's July 12 statement on Asean's six-point principles on the South China Sea bears reiteration. It will be critical that China is a part of this negotiation - as much as the Philippines and other claimants - and not feel that the 10 smaller countries are ganging up.

The legal process will move ahead - quickly and quite inexorably. It must also be expected that China will use economic and other levers to express its displeasure with Manila. The Philippines is testing China's intentions in law but its own endurance will be tested in economic and political spheres.

Challenging China under the UN convention is a decision by the Aquino administration that international law allows and no other country can stop. But what others in the region can and must do is help prevent the legal process from creating a political mess.

Simon Tay is chairman of the Singapore Institute of International Affairs and associate professor in the Faculty of Law at the National University of Singapore. He is also senior consultant at WongPartnership, a leading law firm in Singapore with regional practices

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This article is now closed to comments

pslhk
F Younghusband intruded, was captured then gracefully set free.
In return, in cold blood and in just a matter of about an hour
he and his Brit soldiers gunned down over 3,000 Tibetans
an unrivalled killing rate in Tibetan history
Back home he was knighted,
found his own age of enlightenment
and started his own saintly cult
caractacus
The pro-China bias of this article calls into question the author's objectivity. What else other than taking the lawful step of arbitration is the Philippines supposed to do, give all its territorial waters to the regional bully?
pslhk
Interesting mutation of the tripartite relationship of USA, Nippon and Philippines:
-
In the month-long Battle of Manila, February 1945
In Intramuros (the old wall city) alone
1,010 U.S. soldiers
16,665 Japanese soldiers
100,000 Filipinos civilians
were KILLED
-
“the Americans and Japanese inflicted worse destruction on Manila than the German Luftwaffe had exacted upon London, which resulted in the destruction of the city and in a death toll comparable to that of the Tokyo firebombing or the atomic bombing of Hiroshima” - Wiki.
-
As a Cantonese saying goes
someone (always Uncle Sam) provides soy sauce
and you (Asians) slaughter a hen
-
Dead buried and forgotten
Peace to the world
whymak
With 4 million war dead and hundreds of thousands deformed newborns from Agent Orange, the alpha male animus and territorial instinct of the Vietnamese have blinded them to recent history.
Exchanging welfare economics for the gratification of a hate passion is no surprise. Some Hong Kongers are good at that too. But sleeping with your old foe and genocidal tormentor? That's beyond the pale of most civilized peoples.
Odd is human nature, that's for sure. So is the inferiority of some people in Southeast Asia.
caractacus
your final sentence exposes your racist mentality, no doubt part of the alpha male animus and territorial instinct of the Chinese. Look yourself in the mirror and see one million dead Tibetans.
whymak
Rage could cause illiteracy in some folks. In case you didn't notice, I applied the inferior label to some Hong Kongers. Yes, they are yellow people like me.
For instance, one of our compatriots, Ms. Emily Lau Wai Hing, demonstrated solidarity with Lee Tenghui, after the latter said in no uncertain terms that Diaoyutai should belong to Japan.
Except for you, most Chinese are aware that Japan killed millions of Chinese in an 8-year war of occupation, including wanton slaughter of 300,000 innocents after they took Nanjing.
Under old Tibetan theocracy, landowners and clergy tyrannized their own people. Tibetans couldn't read and write. Pedophilia is common among the clergy. Torture of serfs by landowners and monks were common practices.
I don't know where your one million dead Tibetans came from, presumably you count all reincarnated souls - another superstition foisted by lamas on illiterate Tibetans - since Homo Sapiens first walked the hardly habitable permafrost of Tibetan plateau. For your information, there are less than 3 million in Tibet, out of which 93% are Tibet ethnics. More Tibetans live in Qinghai and other hospitable Chinese provinces.
Tibet has posted over 12.2% economic growth for over a decade. Children can now all read and write. Instead of being deranged, why don’t you calm down and take a course from Professor Sautman at HKU?

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