Paradoxes in the South China Sea issue

The South China Sea controversy is wrapped in paradoxes that are symptomatic of the tension between the practical realities of the geopolitical system of unequal nation-states and the universal norms of an emergent global legal order. China is part of the world system of nation-states, yet it acts like a regional hegemon standing above international law.

The first paradox, of course, is that, while it is called the South China Sea, this body of water does not belong to China. China claims all of it, citing “historic rights” to maritime territory demarcated by a so-called “nine-dash line.” We have turned to calling our own side of the ocean the West Philippine Sea. Yet, these are international waters.

Unlike the United States, China has ratified the United Nations Convention on the Law of the Sea (Unclos), which lays down the principles, legal norms, and modes of settlement applicable to maritime disputes. In 2013, the Philippines, an early Unclos signatory, filed a case opposing China’s “nine-dash line” at the Permanent Court of Arbitration in The Netherlands. China responded with a “Position Paper” challenging the court’s jurisdiction over the case. It also served notice that it would not participate in the proceedings nor would it abide by the court’s decision. That is the second paradox: China demands to be heard but it refuses to submit to arbitration.

The Philippines is no less caught in this web of paradoxes. In its July 12, 2016, ruling, the arbitral tribunal granted almost all of the Philippine government’s claims. Yet, in the face of this unprecedented victory, its incumbent officials have acted as though the country has lost the case. That is the third paradox.

It has taken a lot of nerve for the Philippines to sue a prickly big power like China. Against the counsel of many of its neighbors in the region, it chose to follow what was generally regarded as a reckless, impractical, and futile course. Everyone knew that any ruling would be difficult to enforce. Thus, after paying a heavy cost for alienating China, the Philippines stood to gain nothing but a moral victory. Now it wishes to repair damaged relations and soothe a neighbor’s wounded feelings. For, indeed, not even the dry measured language of the arbitral award can mask the excoriation to which the court effectively subjects China.

Unfortunately, the text of the ruling leaves little room, if any, for China to save face. I doubt if the other countries that have staked their claims to the South China Sea are in any position either to help soften the ruling’s blow to China’s claims.  Perhaps, this is the right time for the Association of Southeast Asian Nations to make its presence felt by taking its cue from the tribunal’s ruling and speaking up for its members as they seek a just and equitable relationship with China.  The Asean could begin by reviving the long-stalled project of a Code of Conduct in the South China Sea.

It has been suggested that the Philippines could initiate the healing process by piously avoiding any reference to the decision when it goes into bilateral talks with China. Indeed, the usually blunt President Duterte has admonished his Cabinet members not “to flaunt” the victory or “taunt” the losing party. But, the real problem, it seems to me, is how any conscientious Filipino negotiator can avoid referring to the tribunal’s ruling without appearing to sell the nation’s interests and self-esteem to the bully next door.

If we fail to give proper recognition and importance to the decision we have just won, we would become the world’s laughingstock.  No international tribunal would take us seriously from here on. More importantly, we would be undermining the worthy idea of an autonomous global legal order that could regulate relations among nations and formulate rational solutions to conflicts in an increasingly complex world.

The tribunal knew the grave importance of the case before it.  It was mindful of the limits of its mandate and authority—that it had no power to decide sovereignty, or to demarcate maritime boundaries. Its jurisdiction was confined to determining the scope of legitimate maritime territory for purposes of exploiting resources.

Here, the governing norm is the 200-nautical-mile exclusive economic zone that Unclos gives to coastal countries. Similarly, an island in the middle of the ocean generates its own EEZ if it can be shown to be capable of supporting human habitation.  High-tide rock formations are allowed 12 nautical miles of territorial sea, but not reefs or banks that appear only at low tide. The tribunal ruled that the Spratlys are no more than rock formations, not real islands. Mischief and Subi, where China has built its major bases on reclaimed land, are declared as no more than reefs, with no entitlement to 12-mile territorial sea, or to a 200-mile EEZ.

By its masterful framing of the issues, the tribunal succeeded in using its limited mandate to put to rest the most contentious territorial issues in the South China Sea. Indeed, enforcement is another matter. But, the judges could have made life easier for themselves by simply pleading lack of jurisdiction. That was China’s demand. Yet they took the case and did their work. The least we can do to show our appreciation for this exemplary demonstration of professional integrity is to not abandon the conviction that led us to file the case in the first place.

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