Tribunal ruling a double-edged sword for China's neighbours

Chinese ships are seen during a search and rescue exercise near Qilian Yu subgroup in the Paracel Islands, South China Sea on July 14.
Chinese ships are seen during a search and rescue exercise near Qilian Yu subgroup in the Paracel Islands, South China Sea on July 14. PHOTO: REUTERS

The territories in Japan's claims may be dismissed as rocks, not islands. Meanwhile, a Cold War agreement on innocent passage points the way forward for US and China.

On 12 July, a tribunal in The Hague handed down a ruling in the arbitration case instituted by the Philippines against China, brought before the court three years ago.

The tribunal, set up under the International Tribunal for the Law of the Sea, ruled in favour of the Philippines, concluding that there was no legal basis for China to claim historic rights to resources in the South China Sea falling within the idiosyncratic "nine-dash line" that had been used in some Chinese maps.

Additionally, it ruled that none of the maritime features in the disputed Spratly Islands is entitled to 200-nautical-mile exclusive economic zones (EEZs), as they are not "islands" entitled to such zones, but mere "rocks".

The ruling has yielded some rather unexpected effects that go well beyond China's own territorial claims. According to the arbitral tribunal, Taiwan's Taiping Island is technically a "rock", meaning that it cannot generate an EEZ.

Indeed, many countries in the region may now find themselves in an uncomfortable position, including Japan, with regard to its Okinotorishima and Takeshima islands. If taken to court, these "islands" might be demoted to "rocks" without EEZs.

As a result, the tribunal's ruling may prove to be a double-edged sword for some of China's neighbours. While China's rejection of the court's ruling is certainly a problem, it helps Japan because China cannot use the court's ruling against Japan's claim to EEZs around the Okinotorishima and Takeshima islands.

There also remains the possibility that the ruling will have a dampening effect on territorial disputes. Out of fear that the court might redefine their islands as rocks, countries in the region might be inclined to remain silent on disputed islands instead of escalating their claims and/or seeking arbitration.

As for the current stand-off between the United States and China over the law of the sea, it is not one without precedence. The Cold War was the stage for a similar stand-off between the US and the Soviet Union - regarding the legal status of the Sea of Okhotsk, for example.

Perhaps even more illuminating is the fact that the contest over the Sea of Okhotsk between the US and the Soviet Union was one of tremendous strategic consequence due to the Soviet Union's reliance on the Sea of Okhotsk to hide its nuclear-powered submarines equipped with ballistic missiles capable of reaching the US mainland.

China, similarly, relies on the South China Sea as a safe haven for its own fleet of ballistic missile submarines. China currently homeports these submarines at a naval base on Hainan Island that faces the South China Sea. This is partly why China has clearly delineated the South China Sea with the "nine-dash line".

The US has responded with "freedom of navigation operations" to challenge what it views as China's excessive claims, akin to how the US responded in the Sea of Okhotsk during the Cold War. US actions during the Cold War were much more robust - it dispatched ships such as the enormous battleship USS New Jersey to the Sea of Okhotsk to challenge the Soviet Union's insistence that foreign military vessels were not allowed to transit the area without permission.

The South China Sea is, however, much less useful as a submarine sanctuary than the Sea of Okhotsk. The South China Sea is significantly shallower and sees much more maritime traffic. China's submarine-launched ballistic missiles, based in the South China Sea, are unable to strike the US homeland, unlike those that had been housed aboard Soviet submarines in the Sea of Okhotsk.

As a result, the South China Sea situation has not elicited a comparable degree of concern from the US.

The perceived notion that the US is not doing enough to stand up to China's expansionist activities in the East China Sea and the South China Sea seems to be shared by both Japan and South-east Asia. There is a perceptible anxiety, especially in Japan, relating to US security commitments and how Japan will be able to protect itself in an emergency. However, this anxiety is not due to the unprecedented threat of conflict between China and Japan in the East China Sea, but rather, to an increased interest in security affairs on the part of Japan. During the Cold War, the Japanese public paid much less attention to issues of international security. In fact, the current level of tension between the US and China in the South China Sea is by no means comparable with the high level of tension that existed between the US and the Soviet Union in the Sea of Okhotsk.

The Cold War experience suggests that there is a way to resolve maritime legal disputes peacefully. One example is how the US and the Soviet Union solved their differences over what constituted "innocent passage". While the US claimed that its warships could undertake "innocent passage" through the 12-nautical-mile territorial waters of any country as long as their transit was peaceful, the Soviet Union demanded that foreign warships obtain permission before doing so.

After a bout of tenacious negotiations, the US and the Soviet Union came to an agreement. The two superpowers issued a joint statement which recognised the right of innocent passage to all ships, including warships, without prior notification or authorisation in 1989 - seven years after the United Nations Convention on the Law of the Sea was adopted.

The US and China face precisely the same issue now. While the US sees no need for prior approval for its military vessels to exercise innocent passage through foreign territorial waters, China is in favour of prior authorisation. China also argues that foreign countries must not engage in military surveillance activities in its EEZ. China has enforced this recently by repeatedly deploying its vessels and aircraft to obstruct US and Japanese military surveillance activities, thus creating precarious situations.

It is unfortunate that China is acting like the Soviet Union did during the Cold War. However, if the Cold War shows us anything, it is that the US and China can reconcile their legal positions over time.

The US, together with the countries in the region, must make every effort to convince China that freedom of navigation and cooperative use of the sea will serve the interest of all nations, including China.

  • The writer, a professor at the National Graduate Institute for Policy Studies in Tokyo, is currently a visiting fellow at the Woodrow Wilson International Centre for Scholars in Washington DC.
A version of this article appeared in the print edition of The Straits Times on July 23, 2016, with the headline 'Tribunal ruling a double-edged sword for China's neighbours'. Print Edition | Subscribe