Beijing may have lost the court case, but it still rules the South China Sea

Tom Plate says Beijing made a blunder in not settling its maritime dispute with the Philippines out of court, but after years of quietly reclaiming land and building facilities in the South China Sea, its actual position is one of great strength

PUBLISHED : Wednesday, 13 July, 2016, 12:31pm
UPDATED : Wednesday, 13 July, 2016, 7:41pm

The Obama administration was shocked and rocked by these words: “We recommend that the United States bring its [raised tariffs against China] into conformity with its obligations.”

That, just two years ago, was the sharply worded ruling from an international body whose judgment Beijing roundly cheered. It came out of Geneva, from the World Trade Organisation, of which both the US and China are members. The WTO had found the Obama administration in violation of international rules with its set of aggressive US tariffs against China importers. How embarrassing!

So, what did Washington then do? What could it do? You either abide by an unfavourable ruling or get out of the organisation. Since you cannot expect to win all disputes all the time in any court, you stay in the system because you know you will win at least some of the time. The alternative is a completely lawless world trade system in which clouds of chaos might precede the more dangerous fogs of war.

Beijing’s official reaction to the 2014 WTO judgment? “China urges the United States to respect the WTO rulings and correct its wrongdoings of abusively using trade remedy measures, and to ensure an environment of fair competition for Chinese enterprises.”

That was the public statement issued by Chinese diplomats – and it was hard to blame them for its “we told you so” tone. After all, it was their diligent legal and deft diplomatic work that so paid off for the world to see.

But that was then and this is now: China’s skilled diplomats have little to celebrate this week.

Massive blow: South China Sea ruling takes direct aim at Beijing’s sweeping claims

On Tuesday, a different international body ruled against Beijing in a different high-level dispute. This one concerned sovereignty and land usage, as well as maritime rights and jurisdiction issues, in the sprawling South China Sea, the heavily used and vast ocean water of East Asia.

From the standpoint of its world image, this is not Beijing’s best week

The international organisation issuing the ruling was the Permanent Court of Arbitration in The Hague. In a case brought to it by the government of the Philippines, the court, with explicit reference to the UN Convention on the Law of the Sea of 1982, dismissed China’s expansive territorial and sovereignty claims in the South China Sea as lacking legal foundation; scoffed at its island-enhancing-and-creating campaign as unsupportable under international law; and described all its oceanic filling-and-building and upgrading to be in serious breach of the convention’s environmental aims.

From the standpoint of its world image, this therefore is not Beijing’s best week ever. Although it had long ago claimed that Manila’s case was frivolous and even provocative, it was, as a factual matter, a signed and sealed member of the Law of the Sea treaty and thus under some obligation to respect the process.

But it made a tactical blunder: Instead of “settling” the maritime dispute with the Philippines “out of court”, before this embarrassing (and, frankly, anything but unpredictable) decision was to be handed down so loudly, China chose to hold defiantly to its position that the Hague court was not competent to address these issues, while continuing to landfill and build and expand facilities.

So, what next for Beijing?

Rocks, reefs and the ruling: the Hague tribunal’s key findings in the South China Sea case

Stay cool: as we say in America, “possession is nine tenths of the law”, and no court order out of Switzerland – however proper, technically correct and well meaning – will fully dislodge the Chinese from their claims and facilities. Nor will the US, especially in a presidential election year, risk serious conflict with the People’s Republic of China, especially at a time when American public opinion can barely bring itself to support the current policy of keeping 8,500 US troops in Iraq.

Through sheer audacity and grand scheming, Beijing has attained a position of great strength

And, by the way, China should ignore any unctuous comments that may come out of Washington: notwithstanding, the US Senate never ratified the Law of the Sea treaty and so, unlike China and more than 150 good international-law-abiding nations, technically America is not even a member of this convention that it insists China must honour. Just tune out any lectures from Washington in response to the ruling.

The Chinese government’s first wave of reactions to the Hague ruling will be probably prove negative, dismissive and even spiteful. But, given enough time, cooler heads in the capital of the world’s most populous country will locate an actual silver lining in this cloud.

Which is this: Having accomplished so much in its expansion of groundbreaking claims and indeed building a physical military presence in the South China Sea, it can now afford to take the high road on these high seas and begin to negotiate with Hanoi and Manila and other claimants and concerned countries.

Through sheer audacity and grand scheming, Beijing has attained a position of great strength. It will only strengthen its hand even further – morally (soft power) as well as geopolitically (regional leverage) – by giving back to its neighbours some of what it has claimed and gained.

If it does, it will still remain ahead in the great historic game of the South China Sea competition. Perhaps even further ahead than anyone thought possible.

Win some, lose some.

Columnist Tom Plate is author of the Giants of Asia series. His latest book is The Fine Art of the Political Interview