Is there a way for Beijing to save face after the South China Sea arbitration ruling?
Jerome A. Cohen says China should look to restart negotiations with the Philippines after the upcoming ruling on the UN Law of the Sea dispute, given its impact on regional peace and its own foreign policy
Rumour even has it that the People’s Republic, by enticing many landlocked autocracies and other smaller states with no apparent interest in the South China Sea to endorse its position, may seek to delegitimise the arbitration decision through a majority vote in the UN General Assembly or some other international forum.
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Taiwan finds itself in a third distinctive position. The recently departed administration of president Ma Ying-jeou, himself an international law specialist, went all out to persuade both the world and the tribunal that Taiping Island (Itu Aba), the largest of the disputed Spratly chain and the only one that Taiwan occupies, deserves a 200-nautical-mile “exclusive economic zone”. Taipei and Beijing, because they both claim to represent China, take similar positions regarding many of the issues at stake in the arbitration. Yet Taipei, it should be emphasised, unlike Beijing, does not seek to discredit either the tribunal’s proceedings or the arbitrators.
Taiwan does not challenge the legitimacy of the tribunal’s anticipated application of the Law of the Sea. Quite the contrary, it bemoans the fact that it has been denied the opportunity to take part in the proceedings because of its exclusion from representation in the UN. Nevertheless, it has sought to influence the tribunal’s decision about the merits of the issue through submission of an uninvited but skillful “friend of the court” brief prepared by its Chinese (Taiwan) Society of International Law.
Is a new cold war brewing over the South China Sea?
To what extent Taiwan’s newly elected government, led by the able law scholar Tsai Ing-wen, will alter the legal stands taken by the Ma government concerning the South China Sea remains to be seen. On a related question, apparently in order not to offend Japan, it has made a milder response than Ma to Tokyo’s spurious claim that the spit of land it calls Okinotori Island to the east of Taiwan is entitled to an exclusive economic zone.
The United States, increasingly aware of the significance of the forthcoming decision, has not been a passive witness to these disturbing developments. The Obama administration has emphatically addressed the issues through both unusually publicised naval manoeuvres and vigorous diplomatic actions. It has mobilised ever greater direct and indirect pressure upon Beijing to reconsider its refusal to honour its obligation, as a member of the UN convention, to obey the arbitration decision.
Moreover, many American non-governmental experts in international law and politics have emphasised the arbitration’s importance for China’s foreign policy, peace in Southeast Asia and a rules-based world community. The American Society of International Law discussed the issues in April at its annual meeting and included two Chinese experts, who found themselves in rough waters. The Council on Foreign Relations, the Centre for Strategic and International Studies and other prominent think tanks as well as universities have had a number of similar programmes, and quite a few relevant editorials, op-eds and longer articles have been published in major American newspapers and magazines.
Beijing calls for dialogue with Manila but insists Philippines drop South China Sea Hague case
China, now evidently worried that it will be condemned by the world community, has been forced to seek support from Mozambique, Slovenia, Burundi and many other weak and distant states. This is ironic, of course, since Beijing has until now argued that powerful states like the US, Japan and India that oppose China on this matter have no right to address it, because they do not border the South China Sea, .
Russia, having recently been diminished by its refusal to accept the jurisdiction of another Law of the Sea arbitration panel, has announced its neutrality on South China Sea questions. After losing its dispute with the Netherlands over seizure of a Dutch-flagged Greenpeace ship and crew, Russia found a face-saving way to comply with most of the tribunal’s decision without recognising its jurisdiction. Moscow claimed it released the ship and crew in accordance with its national law!
In losing its Law of the Sea dispute with Bangladesh over the Bay of Bengal in 2014, India showed how great powers should accept the decision of an expert panel of independent arbitrators and renew negotiations on that basis.
China and the Philippines, after the arbitration decision, can renew their negotiations and settle the issues by taking account of the decision without formally mentioning it. “Face” is crucial, of course. But with every Beijing propaganda blast, it will become harder to save.
Jerome A. Cohen is professor of law and director of the US-Asia Law Institute at NYU. He is also adjunct senior fellow for Asia at the Council on Foreign Relations