A UN ruling against China won’t help resolve the South China Sea dispute with the Philippines
Xu Xiaobing says the tribunal must see reason and realise that the dispute is beyond its jurisdiction; a decision against Beijing will only harden positions on both sides, impeding negotiations
The arbitration case brought by the Philippines against China in 2013 has been a high-profile one right from the beginning. It now has a chance to become a highly provocative one.
While the world anxiously awaits the tribunal’s final decision in The Hague, the case may not develop as either side thinks it will.
For China, it is like a ticking time bomb. Beijing has harshly criticised the case as a “political conspiracy” and a “violation of international law” itself. However, today, the consequences of the arbitration result may not be all that negative for Beijing. No matter how bad the result, the case has forced China to think much harder about its legal claims in the South China Sea on the basis of international law in general and the law of the sea in particular.
Indeed, there has never been a moment in the history of China’s engagement in the ocean when so much attention, debate, research and resources have been devoted to the law of the sea issues by China. Given that its ambitions have grown far beyond the South China Sea, it is a very useful exercise. Confronting and fighting this uphill legal and political battle will bring long-term benefits for China.
For the Philippines, even with the best possible legal aid from a top-notch Western team and the seeming political backing of the US and others, the impact of the arbitration result may not be all that positive.
China is absolutely right to insist that the essence of the South China Sea dispute concerns conflicting sovereign claims over the islands and related maritime delimitations, over which the tribunal clearly has no jurisdiction. This is because territorial sovereignty over maritime features in the South China Sea is beyond the scope of the 1982 United Nations Convention on the Law of the Sea. In addition, on August 25, 2006, pursuant to Article 298 of the convention, Beijing deposited with the UN secretary general a written declaration that made it clear China does not accept any of the compulsory dispute settlement procedures (including compulsory arbitration) provided for under the convention, with respect to disputes concerning maritime delimitation.
Indeed, the tribunal does not claim to have such jurisdiction. As a result, to justify its authority, it has to avoid touching on any of these issues – a fatal defect in exercising its jurisdiction over the dispute.
Even in a technical sense, the tribunal has to maintain a narrow and legalistic jurisdiction, as it did eight months ago when it ruled that it had jurisdiction over the case. The ruling next week will, it can be argued, show that its role in this dispute is rather dubious.
Due to its limited jurisdiction and the divisive controversy, few would expect the tribunal to be able to calm the troubled waters. On the contrary, if it trespasses on the limits of its authority, it could well bring about a typhoon.
Suppose that, to China’s dismay, the tribunal supports the Philippines’ major positions, as many have predicted it will. Would that be helpful in resolving the dispute? The answer is a clear no.
Such an arbitral award would be detrimental to future political negotiations because it may be used by the parties to harden their positions and thus may defeat the very purpose of establishing the tribunal itself – to resolve or help resolve, rather than complicate, the South China Sea dispute.
For China, to respond to such an “outrageous” arbitral award, it may, for the first time, be forced to officially explain or defend the legal status of its claimed nine-dash line and its “historical rights”. Although China should stop maintaining its official vagueness on these issues, such vagueness does, however, gives China flexibility in future negotiations. Now such flexibility may be doomed.
For the Philippines, a favourable award may certainly help strike a balance of power in facing an Asian giant. However, ironically, it will also offset the desire expressed by new president Rodrigo Duterte to visit China and negotiate a settlement. Assuming this is still what he wishes to do, it would be naive to expect Chinese leaders to meet and negotiate with a Philippine leader who insists on putting the arbitral award on the table.
Such a narrow legalistic move by the tribunal may not only make future negotiations and compromises more difficult, it could also raise regional tensions by providing excuses for external intervention. In the worst-case scenario, an unpersuasive tribunal could bring confrontation to the region.
Facing such consequences, the tribunal’s insistence on exercising a narrow and legalistic jurisdiction clearly offends the principle of judicial propriety, which requires the prudent use of judicial power by a court or tribunal. As the International Court of Justice stated in its 1963 ruling on a case concerning the Northern Cameroons, while a court or tribunal may be satisfied that it has jurisdiction over a dispute, it is “not compelled in every case to exercise that jurisdiction”, for “[t]here are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore”.
The South China Sea dispute is at a crucial turning point. It is up to the tribunal, and the Philippines as the complainant, to make a rational choice and prevent a bad outcome for everyone involved. The concept of judicial propriety and the complexity of the case dictate that the correct method for dealing with the dispute is bona fide friendly consultations and diplomatic negotiations between the parties directly involved.
Dr Xu Xiaobing is associate professor of law at Shanghai Jiao Tong University KoGuan Law School