Political maelstrom gathers force in South China Sea

BEIJING and Manila are continuing their increasingly shrill propaganda war over the South China Sea, with each accusing the other of violating prior agreements and provoking tensions.

What is going on? Short of use of force, what are the possible outcomes of this dispute? And what are their implications?

On Jan 22, a potential watershed date for the politics of the South China Sea, the Philippines - with tacit US support - filed a complaint against China with the Law of the Sea's dispute settlement mechanism - the International Tribunal for the Law of the Sea based in Hamburg, Germany.

Despite China's refusal to participate, the process is continuing and an arbitration panel has been appointed and convened. However, the arbitration is likely to be a long-drawn-out process that may take years and settle little or nothing.

In an ideal world, the outcome of the arbitration would be based solely on the law and the facts of the case. Both sides would accept it and move on. But this is not an ideal world. Indeed, the outcome of this case could have significant political implications for both the Law of the Sea and its dispute settlement mechanisms. It could even influence behaviour and political relations in the South China Sea and beyond.

The arbiters are at the centre of a political maelstrom. One of the reasons China refused to participate in the process is that when its leaders ratified the Convention in 1996, they assumed - obviously incorrectly - that the Law of the Sea dispute settlement mechanism could be avoided by direct negotiations. This turn of events must therefore have come as a surprise.

Nevertheless, it seems that whatever the arbiters' decision, China will simply refuse to abide by it and shrug off the resulting political fallout.

This would not be the first time a powerful country has refused to participate in international court proceedings. In 1984, Nicaragua brought the United States to the International Court of Justice (ICJ). The ICJ held that the US had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbours. Washington refused to participate in the proceedings after the court rejected its argument that the ICJ lacked jurisdiction to hear the case.

In the present case, China's refusal to participate, and its non-compliance with any judgment, will likely tarnish the reputation and authority of the tribunal and international law in general. But it will also give notice that China is not to be trifled with - that it will not "be taken advantage" of by small Asian countries.

There are several possible outcomes of the arbitration - each with its own consequences. First, the arbitration panel must decide if it has jurisdiction to hear the case. China's supporters maintain that it does not, and that the Philippines' complaint involves errors of fact and issues that are excluded from the panel's purview. The latter include boundary delimitation, links to questions of sovereignty, claims to historic title and law enforcement activities.

China's supporters also contend that the Philippines has not exhausted its obligation to negotiate the issues bilaterally as stipulated in the mutually agreed 2002 Declaration on Conduct of the Parties in the South China Sea. This document pledges the parties concerned to resolve their territorial disputes through direct negotiations. Having insisted on this provision in November 2002 negotiations with the Asean states, China has continued to cling to it in this dispute.

Beijing's supporters also argue that China has never claimed sovereignty over all the maritime space and waters within its so-called nine-dashed U-shaped line as alleged by the Philippines in its complaint. This line is a general demarcation used by both the governments of the People's Republic of China and Taiwan to indicate their interests in the South China Sea.

Pro-China analysts argue that this U-shaped line - whatever it represents - is a historic claim that is independent of and predates the current Law of the Sea.

Of course, China claims none of this officially because it refuses to participate in the process. And although China's analysts argue that Beijing never claimed everything within the line, numerous official maps issued by China encompass most of the South China Sea within its "national border".

If the panel decides it does not have jurisdiction, the South-east Asian claimants - including the Philippines, Brunei, Malaysia and Vietnam - will be resigned to negotiating their overlapping claims with an increasingly powerful and intimidating China. And, like the Philippines, they will most likely take political and even military measures to protect themselves, including drawing ever closer to the United States.

On the other hand, if the panel decides it does have jurisdiction and goes on to rule against China, it could be committing institutional suicide. China will not abide by the ruling, legal and political uncertainty will reign in the South China Sea, and violent incidents there are likely to proliferate.

The authority and legitimacy of the dispute settlement mechanism, and even the Law of the Sea itself, will be undermined. It may therefore be sidelined in future maritime disputes. Perhaps more significant, domestic opposition to US ratification of the treaty will be given a substantial boost amid cries of "See, that could happen to us".

Alternatively, the panel may decide it has jurisdiction and then suggest a compromise. This could involve recognising that China has "historic title" to a share of the resources in the disputed area, but then saying that it must share them with the Philippines (and by implication, the other claimants). The betting is on this option - or a similar compromise.

But if the arbiters insist on "legal purity", they may choose the first or second option. Then the only sure winners in this saga will be the US law firm the Philippines hired to represent it in the case.

The writer is adjunct research fellow at the China National Institute for South China Sea Studies, an institute attached to the Hainan provincial government, China.