Scorched earth ruling on S China Sea

Peter Lee July 14, 2016 1:14 AM (UTC+8)
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The sweeping judgement by the Permanent Arbitration Court in Hague on July 12 has dashed China’s South China Sea claims and left a completely open field for the Philippines and others. It is an important step in efforts to cripple China as a positive and significant economic force. On the other hand, the white paper that China issued soon after the ruling is a signal to neighbors that it is ready to move beyond the nine-dash line to strike a deal with them through bilateral talks. 

As we say in America, the People’s Republic of China (PRC) got utterly waxed by the UNCLOS Arbitral Tribunal award in Philippines v. China.  “Waxed” as in “knocked prone, utterly flattened, finished off, now part of the floor, incapable of offering resistance, not a factor.”

China says its construction in South China Sea is to help maritime search and rescue, disaster relief, environmental protection and navigational security
China says its construction in South China Sea is to help maritime search and rescue, disaster relief, environmental protection and navigational security

In fact, as observers noted, the commission went above and beyond the call of duty and the scope of the Philippine pleading to assert that there were absolute zero features in the Spratly Islands—the cluster of reefs, atolls, and whatnot off the Philippines that China calls the “Nansha Islands”—that merited classification as anything more than a rock.

Even Itu Aba Island a.k.a. Taiping Island, Taiwan’s flagship holding in the Spratlys, was denied island status, despite holding a 600-person garrison sustained by four wells reputedly capable of pumping out 65 tons of water a day and certainly making a plausible case that it could “sustain economic life.”

No “island” status means no 200 nautical mile Exclusive Economic Zone for the “feature” regardless of who controls it.

And that means that for the Philippines, there are no overlapping/conflicting EEZ claims standing in the way of its immediate assertion of its unambiguous and uncontestable EEZ extending into the South China Sea from its archipelagic baseline and covering much of the Spratlys.

That, I suspect, was the point of the commission award.

Cognizant of the fact that the PRC had boycotted the proceedings, aware that the PRC had publicly, repeatedly, and vociferously stated its intention to disregard the ruling, perhaps unofficially contacted by the PRC to receive a heavy-handed threat that an adverse ruling might trigger a PRC withdrawal from UNCLOS and a collapse of the treaty, chafing under PRC accusations of illegitimacy and bias…

…perhaps acting on the assumption that any other arbitration proceedings by other claimants subsequent to the Philippine case would be nothing more than occasions for futile delay and indeed simply provide the PRC more time to consolidate its illegal position in the South China Sea and flout the rights of the claimants…

…maybe the commission decided to make a clean sweep of the PRC case and leave a completely open field for the Philippines and, indeed, everyone else.

China problem solved, in other words, forever.  With the nine-dash-line invalidated and the Spratlys out of the picture, the PRC maritime rights in the South China Sea are cut back to a little nubbin between the Vietnamese and Philippine EEZs plus the twelve-mile limits around the various rocks it occupies.

Call it a scorched earth ruling on the South China Sea. And an unpleasant surprise, it appears, for the PRC.

Immediately subsequent to the ruling, the State Council disgorged a lengthy, detailed white paper that appeared to abandon the nine-dash-line principle with a claim based on PRC sovereignty over the Spratlys as an archipelagic cluster, in other words, a big fat wad of territory in the South China Sea that would merit an archipelagic baseline circumscribing the area as a whole and a big, fat unitary EEZ impinging on the Philippine EEZ.

It now looks like a non-starter.

With the Spratlys deemed underserving of anything more than “rock” status, it seems the “archipelago” dreams are in the rubbish.  It should also be noted that it would be extremely unlikely that UNCLOS would have granted archipelagic status (reserved for dense, populated island groups like the Philippines) to the Spratlys.

But maybe the PRC strategy was to introduce another point of plausible dispute and litigation and string this thing out until everybody yielded to Chinese intransigence and cut a deal.

Well, that’s not happening.  And maybe pre-empting Chinese delay and obfuscation was the commission’s intention.

Judging by the regional reaction—“Ooooh!”—I think the other South China Sea claimants were equally surprised and perhaps also somewhat taken aback by the scope of the arbitration award.

For President Duterte in the Philippines, the award is something of a poisoned chalice.  With the Philippine EEZ issue settled, he has little leeway to trade concessions with the PRC without receiving criticism and worse from his critics.  Even when it looked like the arbitral award might leave some room for horse-trading, Philippine legal eagles were already threatening impeachment if Duterte compromised the Philippines’ sovereign rights by cutting deals with China.

Instead, the logic of the UNCLOS ruling would dictate that the Philippines demand that the PRC vacate two elements in its “Great Wall of Sand”, Mischief Reef and Subi Reef, since they are artificial islands inside the Philippine EEZ built on top of below-water features, and enjoy no legal sovereign status as islands, rocks, or whatnot.

If Duterte sends out a military force to evict the PRC and the PRC resists, then we’re skating close  enough to invoking the US-Philippine Mutual Defense Treaty (which is supposed to cover situations when Philippine forces “come under attack” outside of Philippine territory but not offensive operations) to make pivoteers’ hearts go pitty-pat.

The flip side is that pushing the Philippines EEZ rights also raises the specter of PRC “price tag” economic retaliation, something that also thrills pivoteers since it reinforces the polarization narrative at the heart of the strategy, but increases the economic costs to the Philippines and creates an additional nexus of crisis for Duterte in PRC relations, an area he was hoping to pick up a political win with a more conciliatory approach.

The same equation applies to Indonesia, Malaysia, and Vietnam, I believe: the window of opportunity for win-win dickering is closing as the need to claim the legal gains offered by the UNCLOS ruling becomes more pressing.

Big winners in the UNCLOS affair are the PRC’s zero-sum competitors, Japan and the United States.  The door is open for America’s friends and allies to pursue more aggressive policies in the South China Sea, and the United States gets to play the “international outlaw” card on China or, as Quartz usefully framed it, China has no respect for international law, its neighbors, or marine life, tribunal rules.

More grist for the mill that the United States is fighting “revisionist authoritarianism” i.e. China on behalf of the “international liberal order” and not just engaged in great power jostling in the South China Sea.

As for the PRC, in my opinion it hopes to continue doing what it’s been doing, skulking around the South China Sea with its fishing fleets and coast guard vessels, alternately harassing and compromising with its neighbors, trying to keep the conflict levels low enough to avoid military clashes and prevent its presence from escalating into a genuine security issue justifying the military intervention of the United States.

As you might gather, I am not an adherent to the “South China Sea” = “China’s Sudetenland”–or “China’s Sudetenzee” for you German speakers—i.e. a springboard for aggression and conquest.  The PRC, in my opinion, hoped to leverage its South China Sea claims in order to wean the Philippines from the United States and Finlandize Vietnam in order to strengthen a ring of sympathetic states around the South China Sea.

This sort of vassalage is anathema to the US and China-hawk and pro-US elements in South East Asia, and the UNCLOS ruling is an important step in efforts to cripple the PRC as a positive and significant economic force—and supplier of attractive economic-friendly “security goods” like lighthouses, coast guard fleets, and so on—in the South China Sea.

The PRC had been quietly backing away from the nine-dash-line embarrassment for several years and hinting it would resolve its conflicts with other South China Sea claimants through various bilateral agreements that did not invoke acceptance of the nine-dash line as a precondition for talks.

The State Council white paper (it doesn’t get any higher than the State Council, folks, at least in non-Party settings), with its lengthy, “UNCLOSian” parsing of the PRC Spratly claims, implies that the PRC had been reaching out to the various claimants on non-nine-dash-line basis for some time.

Probably, the PRC’s de facto abandonment of the nine-dash-line was part of the package it offered to various claimant governments in the last few months in return for an undertaking not to publicly gang up on China once the ruling came down.

The White Paper’s release on the day after the Hague decision is a signal to its neighbors that the PRC is ready to move beyond the nine-dash line, it’s ready to deal…and it’s not leaving the South China Sea.

Hanging around there, however, just got considerably more difficult and expensive.

Peter Lee runs the China Matters blog. He writes on the intersection of US policy with Asian and world affairs.

Peter Lee
Peter Lee runs the China Matters blog. He writes on the intersection of US policy with Asian and world affairs.
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