China “could end up erecting a Great Wall of self-isolation” if it doesn’t back off its island-building and claims to a huge swath of the South China Sea, Defense Secretary Ash Carter warned last week in Singapore. While China’s moves have caused concern in Washington as well as numerous countries in Southeast Asia, no nation in the region has been as active in challenging China as the Philippines.
In the coming weeks, an international tribunal in the Netherlands is expected to rule in a case brought by Manila in 2013 against Beijing over its claims and activities in the region. Julian Ku, a professor of constitutional law at Hofstra University, has called the forthcoming ruling “one of the most anticipated international judicial decisions in recent history.”
Here’s a look at the case and some of the issues at stake.
What the Philippines wants from the tribunal
The Philippines has asked the tribunal to rule on the validity of China’s claim to territory that falls within what China calls the “nine-dash line,” a U-shaped area of demarcation dipping far off the mainland’s southern coast, sweeping east of Vietnam, down near Malaysia and Brunei, and then looping back up west of the main Philippine islands. The loop encompasses the Paracel and Spratley islands and Scarborough Shoal.
Though China has never explicitly defined what privileges it believes it has within the nine-dash line, it has asserted “historic rights” in the area.
The Philippines worries that such a claim could eventually lead China to assert full sovereignty and control over all the land, water, seabed and other atolls and shoals within its boundaries.
A less expansive interpretation might regard the nine-dash line as a “box” in which China has sovereignty over certain islets and jurisdiction of their corresponding maritime zones, Marina Tsirbas, a policy expert at the Australian National University, wrote recently in the Diplomat. “This is the difference between claiming that the South China Sea is an internal Chinese lake or saying that China has some outlying islands off its coast which generate maritime zones,” Tsirbas said. “In the latter case, the waters between the Chinese mainland and the islands are international for the purposes of military and civilian naval traffic.”
Why the Philippines took this step
The Philippines said it filed the claim in 2013 to protect its national territory and maritime domain, describing the dispute as a matter of “our patrimony, territory, national interest and national honor.” It said that China has been damaging the marine environment by destroying coral reefs, engaging in destructive fishing practices and harvesting endangered species.
China has engaged in massive land reclamation efforts in the region, expanding rocky outcroppings into landing strips and other facilities that could have military uses. Manila asserts that China’s moves “cannot lawfully change the original nature and character of these features.” These small features, the Philippines contends, are not entitled to any “exclusion zones” extending beyond 12 miles that would limit fishing and other activities by other countries. (The U.S. Navy shares this position and recently sailed ships through the region to emphasize the point.)
In a Q&A outlining its rationale for bringing the case, the Philippines Foreign Ministry said it had exhausted “all possible initiatives.” It urged China to participate in the tribunal’s proceedings, saying: “China is a good friend. Arbitration is a peaceful and amicable process to settle a dispute between and among friends.”
The U.S. has backed Manila’s pursuit of the case.
What China says
China and the Philippines, unlike the United States, have both ratified the U.N. Convention on the Law of the Sea.
Nevertheless, China has said repeatedly that it believes it is within its rights to reject the jurisdiction of the Permanent Court of Arbitration and has no plans to abide by its decision; it has repeatedly called on Manila to resolve the dispute through direct negotiations.
China said Wednesday that, contrary to Manila’s claims, the two countries have “never engaged in any negotiation” on the dispute now before the tribunal. It accused Manila of a “deliberate act of bad faith” and said the Philippines had reneged on pledges to resolve matters through bilateral talks. It claims that 40 nations support its position.
The Philippines brought the case under outgoing President Benigno Aquino III. Incoming leader Rodrigo Duterte has indicated he may be open to direct talks with Beijing.
If China is going to ignore the ruling, is this all pointless?
Although China has turned its back on the tribunal, refusing to participate in any of the proceedings, the ruling could have significant consequences for regional and international relations. It could further ratchet up tensions, or cool things down.
If Manila prevails, that could encourage other nations to pursue similar cases or use the ruling as a basis to more strongly challenge Chinese behavior around islets and in waters that are in dispute.
A more mixed ruling might undercut faith in international dispute resolution mechanisms such as the tribunal and the agreements that underpin them. That could lead to moves by regional players or the United States to step up freedom of navigation exercises and other activities such as fishing or drilling for oil in the region.
Some analysts say China could change its tune if the tribunal rules strongly against it.
“Experience has shown that China’s foreign policies and legal positions are not written in stone. An increasingly vigorous effort by those nations that have their own maritime disputes with China to promote their settlement through diplomacy that includes resort[ing] to international legal institutions may ultimately prove effective,” New York University law professor Jerome A. Cohen, an expert on law in East Asia, said in April during a lecture at Taiwan’s Soochow University.
“If all affected nations in the East China Sea and the South China Sea ‘bombard the headquarters’ in Beijing by taking their international law disputes with China to international legal institutions — rather than relying exclusively on endless, fruitless, and unequal bilateral negotiations or American military gestures — there is hope for a turnabout.”