Who has ‘solid basis’?

/ 12:10 AM March 31, 2014

We realize that the Chinese foreign ministry has very little say in the shaping of Chinese foreign policy, often deferring to the increasingly assertive stake-claiming of the People’s Liberation Army. But the latest rationalization offered by a ministry spokesperson is nothing short of ridiculous. To explain Beijing’s continued refusal to take part in a United Nations arbitral tribunal where Manila had lodged an unprecedented case questioning China’s sweeping claims to almost all of the South China Sea, the ministry’s Hong Lei told a news conference: “China will never accept nor participate in the international arbitration unilaterally initiated and pushed by the Philippines, and China’s position has a solid basis in international law.”

But that’s exactly the point, isn’t it? If China’s position has a solid basis in international law, why doesn’t it take part in the proceedings? Like Manila, Beijing too is a signatory of the United Nations Convention on the Law of the Sea (Unclos). The landmark Unclos treaty


itself provides for the arbitration process which the Philippines used when it filed its case in January last year; the process is exactly the kind of forum where conflicting maritime claims can be resolved, or at least discussed amicably. In terms of procedure, then, it is the Philippines’ position which has a solid basis in international law.

In terms of substance, Manila has a strong case; not only are the disputed islands in what is now known as the West Philippine Sea well within the 200-mile exclusive economic zone defined under the Unclos, an outcrop like Ayungin Shoal forms part of the country’s continental shelf, whether that term is defined legally or geographically. Yesterday, Manila filed a memorial or formal pleading before the arbitral tribunal, meeting the deadline set last August for the Philippines to argue the merits of its case.

Against the Philippine position, Beijing can only offer vague and sweeping historical claims, its arbitrary nine-dash-line theory—and economic and military muscle. There is no question that Philippine security forces are dwarfed by those of China, and that despite nearly similar growth rates last year, the Chinese economy is several multiples the size of that of the Philippines. These factors help explain why Beijing insists on bilateral negotiations with Manila, and why Manila is right to opt for a multilateral approach. The bullying that has been on display since 2012 will only get worse in two-country negotiations.

Consider the latest skirmish over Ayungin Shoal. Earlier this month, the Chinese Coast Guard stopped two Philippine fishing vessels that had been chartered by the Armed Forces of the Philippines to resupply the Philippine outpost on the shoal. While Beijing has contested Manila’s claim to this outcrop actively since at least the 1990s, it has never stopped any supply run. Its decision represents an escalation of tensions in the area. And just this weekend, the Chinese Coast Guard again tried to stop a research vessel operated by the Philippines’ Bureau of Fisheries and Aquatic Resources from reaching Ayungin Shoal with new provisions and replacement troops. Fortunately, the vessel was able to reach the outpost by heading straight for shallow waters, where the Chinese Coast Guard ships could not follow.

Reaching the outpost through a navigational maneuver was a small, scrappy victory—but we should not let the good news obscure the terrible reality: That to reach one part of our own territory, we needed to run a Chinese gauntlet. This is unacceptable, but we might have to do it again, and again, in the future. Alternatively, we might be forced to bear the brunt of Chinese arrogance through some form of economic retaliation.

What happened at Ayungin Shoal this month, therefore, shows the true dynamic of that bilateral negotiation Beijing has been insisting on: Its superior resources make Manila’s solid claims and undisputed ties all but irrelevant, and all we can look forward to is the occasional small and scrappy victory. This will not do.

International law is the right way to resolve our conflicting claims. Beijing’s increasing assertiveness at sea is an outrage, but its refusal to participate in the Unclos process itself is a disgrace. It shows that China’s position does not, in fact, have any solid basis after all.

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TAGS: Ayungin Shoal, China, Global Nation, news, United Nations Convention on the Law of the Sea, West Philippine Sea
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