China must bear the consequences of the PCA's ruling

On July 12, the Permanent Court of Arbitration of the United Nations (PCA) will issue a ruling on the Philippines' lawsuit against China's "nine-dash line", which encompasses almost the entire East Sea.

Filipinos call on China to respect UNCLOS and the ruling of the Permanent Court of Arbitration (Source: AFP)

VietnamPlus page introduced an article by the prestigious magazine National Interrest, mentioning the possible consequences when the court makes a decision.

What makes states comply with decisions based on international law? In international relations theory, there are two schools of thought with different views on this issue.

Rationalists believe that whether a state chooses to accept the rulings depends on the fear of punishment or other forms of international sanctions.

Constructivists, meanwhile, believe that states obey international law because they want to abide by existing rules and laws, so as not to tarnish their reputation by defying those rulings.

The upcoming ruling by the Permanent Court of Arbitration (PCA) in The Hague in the dispute between the Philippines and China over features in the South China Sea could be one of the most consequential and long-lasting in the history of the PCA.

How China and other countries respond will also be of great importance to international relations and international law theorists in terms of adherence to the values ​​of international maritime law, in this case the United Nations Convention on the Law of the Sea (UNCLOS).

Background

The Philippines seeks a declaration from the tribunal, first and foremost, that the respective rights and responsibilities of both countries over the waters, seabed, and maritime features in the South China Sea are provided for under UNCLOS and that China’s claim based on “historic rights,” namely its nine-dash line, is incompatible with the convention and therefore invalid.

Second, the Philippines wants to determine what exactly the specific entities claimed by both countries are called, “islands,” “rocks,” or “shoals” (those that only appear at low tide: low tide elevations, or LTEs).

This designation is important because if defined as “islands” under the convention, they may be entitled to an exclusive economic zone (EEZ) or continental shelf rights.

However, if defined as “rocks”, they would only have sovereignty within 12 nautical miles. If they are LTEs, they have no sovereignty at all.

Most of the features that China currently occupies are “rocks” and “LTEs,” meaning that they have at most 12 nautical miles of sovereignty from there. The court is likely to rule that China’s recent reclamation activities have not changed the legal nature of these features. If the court affirms that none of the features can claim an EEZ, the ruling will strip away most of China’s claims to sovereignty in the South China Sea.

And third, the Philippines wants a declaration that China violated UNCLOS by preventing Filipino fishermen from making a living fishing at Scarborough Shoal, damaging the marine environment within Philippine sovereign territory, and conducting “dangerous operations” targeting Filipino fishermen with paramilitary vessels.

China refused to participate in the trial and published a “position statement” explaining its reasons for not participating in the proceedings and reaffirming its “historic rights” to entities in the East Sea.

However, the PCA has made it clear that “the absence or failure of a party to defend its rights shall not constitute a bar to the proceedings,” meaning that China remains a party to the arbitration and bound by any ruling from the court.

It must be emphasized that the PCA will not make any ruling on sovereignty in the South China Sea (adjudicating which country has sovereignty over where) or establish maritime boundaries (of overlapping areas).

On the issue of sovereignty, the PCA has no jurisdiction. On the issue of boundary delimitation, China has previously made it clear that it is withdrawing from compulsory arbitration in a range of maritime disputes, including maritime boundary delimitation, when it invokes Article 298 of UNCLOS.

China's response

After the ruling, assuming it goes in favor of the Philippines on most issues as many predict, China will likely launch a full-scale campaign to denounce the PCA ruling as invalid and declare that it will not comply. China is also expected to rally as many countries as possible to support its position against a binding arbitration (and has already done so).

But China’s subsequent actions are less predictable. The most unlikely response is for China to gradually de-escalate its actions and statements. In this scenario, China would recoil at the risk of damaging its international reputation and would want to demonstrate to the world that it intends to abide by the international norms of conduct and the rules of UNCLOS.

A more likely scenario is that China will take more aggressive action to assert its claims. This could include declaring an Air Defense Identification Zone (ADIZ) in the South China Sea, similar to the ADIZ in the East China Sea in 2013.

China could also continue or start new land reclamation on maritime features it already controls, including Scarborough Shoal, which China seized in 2012 and is the closest Chinese-occupied feature to the Philippines.

China may also accelerate its search for a diplomatic solution to the South China Sea disputes. China is likely to approach the newly inaugurated president of the Philippines, Rodrigo Duterte, to invite him to open bilateral negotiations on the dispute.

China conducts military exercises in the East Sea in May 2016 (Source: AFP)

China could also exert more influence in ASEAN to prevent the bloc from agreeing on how to pressure China to change its behavior. China could even agree on a Code of Conduct with ASEAN to ease regional fears about China, but only if it did not tie China’s hands.

Finally, if the ruling can prevent China's expansionist interpretation of the rocks and LTEs in the South China Sea, other countries may also follow the Philippines' example by bringing China to the PCA.

How will America react?

A favorable response to the Philippines would give the United States additional legal grounds and legitimacy to respond to China’s coercive actions in the South China Sea and its bullying of the Philippines. As a treaty ally, the United States has a solid international legal basis to respond to violations of the Philippines’ maritime sovereignty.

Two maritime features within the Philippines’ EEZ that could be targets for further US intervention are Scarborough Shoal and Reed Bank, a large flat, shallow area of ​​sea. If China interferes with Philippine oil exploration activities at Reed Bank, for example, the US could send its navy to protect the rigs.

Similarly, with Scarborough, the US could respond to incidents of harassment of Philippine fishing vessels by China. Of course, such activities are risky, and should be conducted carefully with clear rules of engagement for the Philippine and US militaries.

Conclude

Whether China will pay a political price for ignoring the PCA's ruling depends largely on how other countries respond after the court issues its verdict.

Public statements supporting the importance of nation-states abiding by the law from the United States, Europe and the United Nations would send an important message to Beijing.

If China decides to ignore the ruling as expected, it could be seen as a rising power that does not respect international standards and the rule of law.

That disregard will be a major concern to many countries that want oceans and seas to be governed according to UNCLOS, not by force.

If China continues to dramatically increase its presence in the region by building more bases, runways, and deploying military assets, the ultimate responsibility lies with the United States and regional nations on how to respond diplomatically, economically, and militarily.

According to VIETNAM+