China's Territorial Claim at Risk in the South China Sea

05/27/2015 03:19 pm ET | Updated May 26, 2016

The Permanent Court of Arbitration (PCA) at The Hague has announced that in July it will be holding the first hearing on the 2013 arbitration case the Philippines filed against China questioning the legal validity of China's '9-dash line' claim over the South China Sea. Since China has refused to participate in any way in the proceedings, Philippine government officials are hopeful that an initial favorable ruling concerning jurisdiction and admissibility of the Philippine case will be the result.

To date, as the arbitral panel has noted, China has not submitted a single responsive paper. The panel is expected to proceed with the case even without China's appearance. This will result to a judgment that will not be binding to China, but it will be binding upon the Philippines. The five-member tribunal is composed of the following judges: Chris Pinto, president (Sri Lanka), Jean-Pierre Cot (France), Stanislaw Pawlak (Poland), Alfred Soons (the Netherlands) and Rüdiger Wolfrum (Germany). Given the composition of the panelists, a ruling in favor of the Philippines is certainly possible.

While China is signatory to the United Nations Convention on the Law of the Sea (UNCLOS), the treaty permits state parties to refuse their consent to be bound by the UNCLOS courts. This begs the question, if the arbitral panel issues an award favorable to the Philippines, would the Philippines be able to 'enforce' the judgment against China? Also, would such an award be valid and binding under principles and norms of international law?

Given that China is willing and able to resist nominal claims, the Philippines cannot enforce the award directly. Enforcement would need to be applied indirectly, with the Philippines possibly using the award to build international consensus that could lead to multilateral, bilateral, or unilateral action to be taken by states and international organizations in support of the Philippine position. If indirect enforcement is the Philippines's best and only option, it will indeed be vital for it to build its case among key stakeholders in the international community.

That said, co-opting members of the international community, including those states not participating in a dispute, can lead to successful outcomes. The Association of South East Asian Nations (ASEAN) would be the first likely candidate. In China's December 2014 position paper on the subject, China had accused the Philippines of 'violating' the 2002 ASEAN Code of Conduct - under its view, the 'unilateral' initiation of arbitration is a violation because parties to the Code of Conduct are supposed to resolve their differences over their overlapping claims in the South China Sea on a 'bilateral' basis and by 'negotiation'.

Curiously, it was through the same ASEAN Code of Conduct that the parties "reaffirmed" their commitment to UNCLOS as well as to the purposes and principles of the Charter of the United Nations. UNCLOS is clearly adverse to the Chinese position which depicts a 9-dash line claiming almost all of the South China Sea. Since there is some authority under international law holding that a state's avowed reliance on a source of law will preempt a retraction of this reliance, by invoking the ASEAN code (which invokes UNCLOS), China is deemed to have admitted to the binding force of that code. This is the case especially when a state's admission will be an admission against its own interests.

Beyond questions over the application of legal doctrine, the more practical question is the perceived value to the Philippines of a decision that may be adverse to China, not being party to the suit. How can and should the Philippines enforce a PCA judgment even if 'indirectly'? To be sure, the United Nations Security Council will not be involved in the enforcement equation because China is a permanent member holding veto power.

Apart from Security Council measures, states are permitted to take proportional and reasonable 'self-help' measures on the basis of decisions of international tribunals. This is where a favorable ruling from an UNCLOS tribunal such as the PCA would be useful. More importantly, self-help measures done in the name of a judgment favoring the Philippines have better chances of triggering mutual defense provisions with its military allies to respond to an armed attack -- or unlawful use or threat of force. The United States has been the Philippines's traditional ally since the 1951 Mutual Defense Treaty came into force. Given the U.S. 'pivot' to Asia -- which is presumed at least in part to be a response to China's growing political, economic and military power - and given America's enhanced military presence in Asia during the Obama Administration, its willingness to honor the commitments associated with the Treaty should not be in doubt.

Beyond bilateral defense treaties, the PCA case will be good for building international consensus over the legitimacy of the Philippine claim among actors who happen to be distant from the plethora of South China Sea disputes. Armed with a ruling issued by a disinterested court, the Philippines can undoubtedly look beyond ASEAN for support. States and governments not privy to the South China Sea may see better reason to intervene or take unilateral action, with or without country-specific defensive pacts.

While the 1951 Mutual Defense Treaty is considered to be the most vital military alliance pact entered into by the Philippines, it has also signed a variety of other military cooperation agreements with leading military powers such as South Korea (1994), Germany (1974), France (1994), Italy (2004), and Russia (2009). In ASEAN, the Philippines has defense pacts with Malaysia (1994), Thailand (1997), Indonesia (1997), Vietnam (1998), and Brunei (2001) - so it is very well positioned should it wish to escalate perceived breaches of its territorial sovereignty against China.

The question becomes whether any of these other states would choose to engage China on the Philippines's behalf. Clearly, the breach would need to be perceived to be serious for the Philippines to call upon any of the signatories to act on its behalf. China of course knows this, and has been very careful, to date, not to breach Philippine territory in an overtly military manner.

While defense pacts are, by nature, passive instruments which must be triggered by an 'armed attack', China's increasingly aggressive posture is raising the stakes. Last week, the Chinese Navy issued verbal warnings to a U.S. Poseidon surveillance aircraft to leave the airspace of the contested islands. This suggests that Chinese authorities are asserting a military exclusive zone above the newly formed islands. Senior US diplomats responded that the reconnaissance flight was "entirely appropriate" for aircraft exercising rights in international waters and airspace.

Recent satellite images point to accelerating progress in China's reclamation activities, which include new military facilities and airstrips. China's posture has been cumulative, including recent reports over the use of water cannons against Philippine fishermen, the firing of illumination rounds or flares at a Philippine reconnaissance plane by a Chinese frigate, and unconfirmed acts of robbery against fishing vessels by the Chinese coastguard.

The larger point is that China has not personified the Rule of Law in all things related to the ASEAN Code of Conduct and UNCLOS, and wants to be able to 'cherry pick' which provisions of international treaties it will willingly comply with, and which it will not. That is behavior unbecoming of a rising global power. It makes states which are signatories to treaties with China wonder if its signature is worth the paper it is printed on, and cannot be in China's long-term interest.

Maritime disputes in the South China Sea and West Philippine Sea will ultimately be a litmus test for whether China will act as a responsible member of the international community, willing to engage other contestants in a rules-based regime in accordance with established norms of international diplomacy, consistent with a nation of its importance and stature. That is China's challenge. The question is ultimately whether China will prevail in a court of law as well as the court of international public opinion, and whether China will be a graceful loser should the case against it prevail in The Hague. It looks increasingly likely that China will lose in The Hague. It has already lost in the court of international public opinion. And it remains to be seen whether or not it will be a graceful loser, but this seems unlikely.

*Edsel Tupaz is a public interest attorney and teaches comparative law in Manila. He is a graduate of Harvard Law School and Ateneo de Manila. Follow Edsel Tupaz on Twitter: www.twitter.com/edseltupaz

*Daniel Wagner is CEO of Country Risk Solutions and author of the book "Managing Country Risk". Follow Daniel Wagner on Twitter: www.twitter.com/countryriskmgmt