All five judges to the International Tribunal for the Law of the Sea (ITLOS) have now been appointed. The case doesn’t need China’s agreement to proceed. China was offered the right to appoint an arbitrator but waived it.
The Chinese nine-dash map includes areas that have been claimed by the Philippines, Taiwan, Malaysia, Brunei, and Vietnam. Taiwan’s claims echo those of China. No other country has joined the Philippines and Japan, which has a different territorial dispute with China, has also stayed to one side.
As a territorial claim, the nine-dash map is a bit of an oddity. The dashes haven’t been joined, the area is vast and no coordinates are specified. The map came into existence in 1947 and China claims historical sovereignty over the whole region. To say that it doesn’t meet standard map drafting requirements is an understatement. Nevertheless, China filed it with the United Nations some time before the case the Philippines laid before the tribunal.
China acknowledges that there are disputes with the other claimants but wants to see them settled by bilateral talks with the country concerned. It opposes internationalisation of the issues. By taking the case to international jurisdiction, the Philippines is almost certainly saying that it has given up any hope of progress through direct talks with China.
China regularly sends military patrol ships to waters claimed by the Philippines, which in turn makes formal protests. The Philippines coast guard recently shot and killed a Taiwanese fisherman, bringing forth stern reprimands from both Taiwan and China.
President Aquino’s comment was accompanied by a promise of more support for the navy. China has protested about the Philippines putting more structures on Ayungin Shoal. The Philippines responded that China couldn’t tell the Philippines what it should do with its own territory.
China and ASEAN have agreed to establish a Code of Conduct in the East Sea. Some hope—though not much—rests in that. The islands have been subject to competing claims for many years. The difference now is that China has become more assertive about its claims.
Australian and NZ interests are palpable. Any major conflict in the South China Sea would undoubtedly affect both countries badly. Moreover, UNCLOS has served Australia and NZ well and any deliberate questioning, flouting or undermining of its principles would create considerable uncertainty. Among other things, UNCLOS allows both countries to manage and police their fishing resources.
The Philippines’ move is a sensible one, and its outcome will be watched keenly by other Southeast Asian countries, by ASEAN itself, by Japan and by the United States. But it’s also something of a long shot. First, if ITLOS happens to rule that China can’t make such a huge claim, the chances are that China will simply ignore it. There’s a precedent over the mining of the Nicaragua Harbour by the United States in 1986 when the International Court of Justice (ICJ) ruled that the US had violated Nicaragua’s rights. President Reagan simply ignored the ruling.
The US participated in the UNCLOS negotiations but hasn’t ratified the treaty. The US Navy traditionally favours ratification but there are strong opponents to ratification elsewhere within the American polity. Because of its ambivalence, the US is unlikely to press China to accept to accept any UN ruling.
Although China and the Philippines have both ratified UNCLOS, which gives it a little more weight, the second reason for doubt is that at the time of ratification, China put in its own reservations, quoting from a 1992 domestic law:
The PRC’s territorial Sea refers to the waters adjacent to its territorial land. The PRC’s territorial land includes the mainland and its offshore islands, Taiwan and the various affiliated islands including Diaoyu Island, Penghu Islands, Dongsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands that belong to the People’s Republic of China.
Most of these islands cited, especially the Spratlys and the Paracels (Xisha) have are the subject of claims by various countries. Diaoyu is what the Japanese call Senkaku.
That Chinese law seems unequivocal and the willingness of China to undo domestic law to accommodate an international tribunal’s ruling, to say the least, is not a sure thing.
Thirdly, there’s a question over whether the issue really falls within the jurisdiction of ITLOS. After all the tribunal might interpret the question before it as one of disputed territorial claims on which it wouldn’t rule. If there is no ruling by ITLOS then the dilemmas over the value and integrity of UNCLOS might disappear. But the issues of what rocks and islands belong to which country will remain.
Stuart McMillan is an adjunct senior fellow in the school of social and political sciences at the University of Canterbury. Image courtesy of Wikimedia Commons.
The Stategist
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