THE BLOG
01/07/2015 10:24 am ET Updated Mar 09, 2015

Philippines vs. China: Law and Disorder in the South China Sea

WikiMedia:

Generalizations about Asian cultures are often misleading, if not despicably orientalist. But I would dare to say that the Philippines is a nation of lawyers, while China is a nation of strategists and business-minded leaders. And this partly explains how the two countries approach the South China Sea disputes.

Owing to its glaring conventional military inferiority, the Philippines has embarked on an unprecedented journey: Launching a legal warfare, dubbed as "lawfare," against China. Manila hopes to leverage international law to rein in China's relentless push across disputed waters in the South China Sea. In a nation of lawyers, the local media has tirelessly sought the views and analysis of lawyers rather than military strategists and foreign affairs experts, who may have a better grasp of the realities on the ground.

In the public sphere, there is minimal discussion of the intricacies of Chinese political system, the advent of popular nationalism and its impact on foreign policy, and complex decision-making processes that determine Beijing's territorial policy. Often, panel discussions among experts boil down to the various articles of the UNCLOS and the arbitration proceedings in The Hague. The upper-echelons of the Philippines' Department of Foreign Affairs (DFA) is also dominated by legal strategists. Leading geopolitical experts are often ignored.

Astonishingly, the Philippines' Department of Defense (DOD) recently postponed the refurbishment of its facilities on the Thitu (Pag-Asa to Filipinos) island, which is among the most prized features in the South China Sea, in order to supposedly maintain Manila's "moral high ground" amid the arbitration proceedings against China. In many ways, lawfare is the name of the game in the Philippines. Discussions on pro-active diplomacy and military modernization often take the backseat.

Meanwhile, China has combined diplomatic charm-offensive, anchored by multi-billion trade and investment deals across the Asia-Pacific theatre, with ruthless military strategy, featuring massive construction projects and para-military patrols across disputed waters. So far, China has astutely used economic incentives and diplomatic acrobatics to dispel any form of unity among Southeast Asia countries on the South China Sea disputes. It remains to be seen whether China and the Association of Southeast Asian Nations (ASEAN) can even agree on the guidelines of a Code of Conduct (CoC) across disputed waters anytime soon.

The question therefore is: Does this mean that the Philippines did the right thing by resorting to compulsory arbitration against China?

A Historic Battle

The month of December has been particularly eventful. China, the U.S. and Vietnam have all expressed their position on the legal aspects of the maritime spats in the South China Sea. And China has officially boycotted the arbitration proceedings by refusing to submit a counter-memorial to the Arbitral Tribunal in The Hague before the December 15 deadline.

China reiterated its outright opposition to any form of third party arbitration vis-a-vis sovereignty disputes in the South China Sea by releasing a position paper on Dec 7, which contains three major arguments. First, Beijing contends that the special arbitral tribunal at The Hague, where the Philippines filed a memorial earlier this year, has no jurisdiction over the issue, since the UNCLOS does not accord it the mandate to address what are essentially sovereignty-related issues. Although China is a signatory to treaty, it has exercised its right (under Article 298) to absolve itself of any compulsory arbitration (under Article 287 and Annex VII) over territorial delimitation issues, among other things.

Second, China maintains that, based on supposed "historical rights," it exercises "inherent and indisputable" sovereignty over the disputed features, including those that fall well within the Philippines' 200 nautical miles Exclusive Economic Zone (EEZ).Third, Beijing asserts that the Philippines violated prior bilateral and multilateral agreements (that is, the 2002 Declaration on the Conduct of Parties in the South China Sea, known as the DoC) by initiating a compulsory arbitration procedure under UNCLOS.

Interestingly, the position paper was released a week before the Monday deadline for China to submit its formal position, or defence, to the arbitral tribunal. The Philippines, in response, maintains that it is China that has violated the DoC by unilaterally altering the status quo through expansive construction activities, widening paramilitary patrols and coercive behavior within the South-east Asian country's EEZ, specifically in the Scarborough Shoal in 2012 and, more recently, in the Second Thomas Shoal.

The Philippines also maintains that the arbitral tribunal has the mandate to interpret the parameters of China's right to opt out of compulsory arbitration procedures. For the Philippines, its legal case is perfectly consistent with the mandate of the arbitration body, since its memorial focuses on whether China's notorious "nine-dashed-line" claim is consistent with international law, and the determination of the nature of disputed features (under Article 121) --specifically, whether they can be appropriated or occupied and generate their own respective territorial waters.

Joining the Fray

While the US does not take a position on the sovereignty claims in the South China Sea, it has indirectly supported the Philippines by supporting the resolution of the disputes in accordance with international law as well as questioning the validity of China's claims.The US State Department's position paper, released on Dec. 5, has raised issues with the "nine-dashed-line" doctrine, arguing that China's expansive claims lack precision and consistency.

After all, China has not unambiguously specified the exact coordinates of its territorial claims. It is not clear whether China claims much of the South China Sea, treating it as a virtual internal lake, or simply claims the land features in the area and their surrounding waters per se. The US, similar to most independent legal experts, also maintains that China's claim to historical rights over the South China Sea waters is not consistent with international law. China has neither exercised continuous and uncontested sovereignty over the area, nor does the South China Sea -- an artery of global trade, connecting the Pacific and Indian Oceans -- constitute a bay or any form of near-coastal water that can be appropriated based on historical rights-related claims.

In short, China's claims far exceed -- if not entirely contradict -- modern international law, specifically UNCLOS. Although the US is not a signatory to treaty, it has observed the international convention in its naval operations.

To the surprise of many observers, Vietnam joined the fray by submitting a position paper to the arbitral tribunal in The Hague last Friday, which contains three main points: It expressed its support for the Philippines' case; questioned the "nine-dashed-line" doctrine; and asked the arbitral tribunal to give due regard to Vietnam's rights and interests. Vietnam's maneuver will most likely have no significant impact on the pending legal case between the Philippines and China, but it carries significant political implications.

In recent months, Vietnam has been engaged in a sustained diplomatic effort to normalize relations with China and prevent another crisis in the disputed areas, especially in the light of the oil rig crisis in the South China Sea this year, which sparked huge protests in Vietnam and placed the two countries on the verge of armed confrontation. Vietnam's bold threat to join the Philippines' legal efforts against China carries the risk of renewed tensions in the South China Sea and of undermining tenuous, but critical, diplomatic channels between Hanoi and Beijing.

It seems, however, that Vietnam is hedging its bets by dangling the threat of joining a common legal front against China as a form of deterrence against further provocations in the future.With both the Philippines and the US explicitly questioning China's expansive claims in recent months, Vietnam perhaps felt compelled to reiterate its position on the issue and underline its right to resort to existing international legal instruments to address potentially explosive territorial disputes.

A Pyrrhic War?

Nonetheless, despite the unanimity of opinion and statements by Filipino, Vietnamese and American officials on the legal dimensions of China's claims in the South China Sea, it is far from clear whether Beijing will re-consider its policy in adjacent waters.

Ultimately, China could respond to growing international pressure by hardening its position. It can accelerate efforts at consolidating its claims on the ground, vehemently reject any unfavorable arbitration outcome as an affront to its national integrity, and impose sanctions on and/or diplomatically isolate the Philippines as a form of reprisal. After all, there are no existing compliance-enforcement mechanisms to compel China to act contrary to its position and interests.

Beyond sovereignty claims, the very credibility of international law is also at stake. As Columbia University Professor Matthew C. Waxman succintly puts it, "For the UNCLOS system -- as a body of rules and binding dispute settlement mechanisms -- prominence and credibility are at stake. A decision that the arbitral panel has jurisdiction," could put the arbitration body at the risk of "being ignored, derided and marginalized by the biggest player in the region." In the end, there may be no clear winners.

An original version of this piece was printed on the Straits Times.