Hague rejects China's S. China Sea claim: how it could shape future disputes
Models of thought
A Hague tribunal ruled in favor of the Philippines in the first such case challenging China's claims over broad swaths of the South China Sea.
An international court in The Hague sharply rebuked China Tuesday, rejecting its claims of control over a broad swath of the South China Sea in a case that will be closely watched for its influence on future negotiations over disputed areas.
It is the first time an international body has laid down a legally binding ruling in the South China Sea dispute, a tangled web of overlapping claims from seven nations that has been described by one analyst as “the world’s most complicated territorial dispute.”
But the tribunal has no enforcement powers, and Beijing responded to its ruling with a statement that "the award is null and void and has no binding force. China neither accepts nor recognizes it." Still, China's objections, and its flurry of diplomatic efforts to garner support for its stance, underscore the potential of the case to shape dynamics in the South China Sea for years – both in terms of how hard other countries press their claims, as well as how the United States and China interact in a region considered vital for global shipping and the projection of military might.
The ruling is "a huge win" for the Philippines, says Taylor Fravel, an associate professor of political science at the Massachusetts Institute of Technology, and could put considerable pressure on China to respond. However, he adds, “China’s immediate reaction will be to denounce the ruling. It will likely watch the Philippines, and especially the US, to see what actions they take to enforce the ruling, and calibrate its response accordingly.”
The case concerns a reef lying 140 miles from the Philippine coast, Scarborough Shoal, which China occupied in 2013. The Philippines was concerned China would build an artificial island at the site, which China would use to bolster its legal claims over the surrounding waters. But it also addresses the issue that lies at the heart of much of the trouble roiling the region: China’s claim to historical sovereignty within the “nine-dash line” it has drawn, which encompasses as much as 90 percent of the South China Sea.
Both China and the Philippines are signatories to the treaty under which the complaint was brought, the UN Convention on the Law of the Sea, which governs only maritime disputes. China’s insistence on the ruling's illegitimacy is based on a technicality, but the decision carries weight among China's neighbors and for China's image abroad.
“If it didn’t matter, China wouldn’t have spent so much time and energy on bullying the Philippines in an effort to make them drop the case,” says Greg Poling, who directs the Asia Maritime Transparency Initiative at the Center for Strategic and International Studies. “But while the court has no police force to enforce its ruling, it will likely move China toward a political resolution.”
But that could take time. In the immediate aftermath of this ruling, Mr. Poling sees a range of possible responses, from a mere verbal rejection of the decision to an escalation of divisive actions in the South China Sea. These could include further construction at Scarborough Shoal; the declaration of an Air Defense Identification Zone, like the one China announced in 2013 in the East China Sea; or a Chinese blockade of Filipino marines on the Second Thomas Shoal, as happened in 2014.
Need to cool things down?
This last would perhaps be the most dangerous, given the bilateral defense treaty that exists between the United States and the Philippines. Yet most analysts agree that a descent into direct confrontation remains unlikely.
“Neither side wants outright conflict,” says David Firestein, who leads the China, East Asia and United States Program at the East-West Institute, “and I continue to believe that for the long-term picture in the South China Sea this judgment won’t have a decisive impact, it doesn’t change dynamics.”
Indeed, last week, a former senior Chinese official spoke in a speech in Washington of the need to "explore ways to genuinely cool down this issue and restore calm to this part of the world."
As well, observers say China has been keenly studying a historical example that bears striking resemblance to this case.
The country in the firing line at the time – 1986 – was the United States. Nicaragua brought a case against the US for its support of the Nicaraguan Contra rebels in an effort to destabilize the socialist government, and the International Court of Justice in The Hague ruled in its favor.
The US boycotted proceedings, said the court held no jurisdiction, and refused to abide by its ruling. Yet by 1991, the dispute was resolved, with Nicaragua dropping the case in exchange for US aid.
“This is exactly the kind of political face-saving we might see from China,” says Poling, “even if it’s years down the line.”
Indeed, in a flurry of mixed messages over the weekend, the government of recently-elected Philippine President Rodrigo Duterte appeared to suggest that the door was open for negotiation and discussion, however the court ruled.
The other nations
The ruling against China is only a small step in confronting the disputes in the South China Sea. Also at odds over maritime boundaries or territorial ownership are Vietnam, Brunei, Indonesia, Malaysia, and Taiwan.
“The United States will, no doubt, give full-throated endorsement to the decision and its process,” Mira Rapp-Hooper, a senior fellow with the Asia-Pacific Security Program at the Center for a New American Security, writes in an email. “This is the rule-of-law and peaceful resolution of disputes in action, and these are two stated US National interests in the South China Sea.”
If China chooses simply to ignore the ruling and proceed with its activities in the South China Sea, the US Navy will likely continue its Freedom of Navigation patrols, emphasizing the rights of international shipping in accordance with the tribunal’s verdict on maritime boundaries. Yet as Dr. Fravel of MIT points out, whether the US chooses to publicize such exercises, as it has done recently, could play an important role in how China reacts. Quiet diplomacy behind the scenes may also be key.
“The initial one or two weeks are going to be very interesting, with people probably prone to over-analyzing the situation,” says Fravel. “But it is not preordained that escalation will happen; it’s not in the Chinese or US interest.”