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Philippines seeks legal solution to disputes over South China Sea with China

Updated: Mar 6


Recently, China has started claims to the whole of South China Sea, thereby sending a sense of unease throughout Asia. As a result, the security scenario in the Asia-Pacific region looks more fragile now than ever before. Ten states have contending claims to some parts of the South China Sea. Two countries – the Philippines and Vietnam – have similar claims and have taken umbrage to China’s belligerent attitude and reacted sharply.


Comparing with Hitler


The public spat between China and the Philippines reached a crescendo recently when Philippines President Benigno Aquino compared China to German of 1938, accusing China of behaving like the Nazis did before World War II, when Germany claimed ownership of all of Austria and parts of France, Poland and Czechoslovakia as part of “Greater Germany”.

Was the comparison of China made by Aquino with Germany justified? In an interview with the New York Times, Aquino said: “At what point do you say ‘Enough is enough?’ Well, the world has to ……….remember that the Sudetenland was given in an attempt to appease Hitler to prevent World War 2”. True, the escalating standoff in that area believed to be endowed with rich resources and minerals is ruffling the feathers of leaders of all countries laying claims. There could be some leaders who are exploiting this international row to smokescreen shortcomings in their own countries. But there is no denying the fact that President Aquino’s response to China’s repeated manoeuvrings was needlessly provocative. President Aquino has just 30 months left in office and he seemed determined to see his term end with high note. But in diplomacy, such outrageous statements could be counterproductive, though the spirit of his observation cannot be disputed. When shrewd diplomacy can serve the purpose and objective, why adopt the route that could create more problems that address to solve the issue at hand. Here, President Aquino seemed to have lacked some diplomatic niceties.


The claims made by Germany and the aggression associated in making such claims in Europe and Japan making similar claims in East Asia with similar aggression led to the outbreak of World War II. In order to avoid a repeat of such an occurrence taking place again, Philippines called for global support and taken the case to the international court for arbitration under the United Nations Convention on the Law of the Sea. Filipino lawyers say that the tribunal has discretionary powers to allow other states to join the action.


Case goes to The Hague


The United Nations arbitration tribunal of judges has agreed to hear the case in March at The Hague. President Aquino has appealed to the international community to support his effort to settle the territorial dispute through the rule of law. According to Filipino foreign affairs secretary Albert del Rosario, the Philippines was constrained to take the case to the United Nations arbitration as the only viable option after exhausting all diplomatic avenues with China. The Philippines filed the petition to the United Nations Tribunal in January 2013. China quickly reacted by stationing paramilitary ships in the disputed area. It also started harassing Filipino fishing and commercial boats.


China has made it clear that it will not participate in the United Nations arbitration tribunal. It has warned Vietnam against joining the case to be heard at The Hague. Vietnam has kept its options open so far. China wants a negotiated settlement with the Philippines. The tribunal is empowered to make a ruling without China’s participation. It will decide whether rock formations claimed by China, some fully submerged, qualify as territory from which maritime claims can be made. The New York Times observed in an editorial dated 6 February 2014 thus: “Under the United Nations Convention on the Law of the Sea, states have a territorial right that extends 12 nautical miles offshore and a 200 nautical mile economic exclusion zone for fishing and mining natural resources. The tribunal cannot rule on the sovereignty of a rock or an island, and its ruling has no enforceable mechanism.”

South China Sea is one of the tensest flashpoints in Asia. Even if a final ruling by the court on the dispute cannot be enforced in the absence of enforceable mechanism, a ruling in Philippines favour would carry considerable moral and political weight, which China might find difficult to ignore. China is a signatory to the 1982 Convention on the Law of the Sea but it opted out of international jurisdiction over some territorial issues. In view of the heightening of tensions over its claims in the South and East China Seas, China would be expected to respect majority opinion of the international community that it should abide by the rule of law and heed the United Nations arbitration ruling. Bonnie Glaser of the Centre for Strategic and International Studies in Washington observes: “If a large number of countries, including members of ASEAN, speak out in support of the application of international law to resolve disputes, Beijing might conclude that flouting the ruling of the tribunal is too costly, even if China’s nine-dash line is found to be illegal”. Thus, what the Philippines started is not an issue for the Philippines alone but an important step forward to reinforce international rule of law, for which the international community would be willing to support.


Who are the claimants? Four member states of the ASEAN – Malaysia, the Philippines, Brunei and Vietnam – along with six other countries in the region make partial or full claims to the South China Sea. Of the 10 countries, China and Taiwan claim much of the sea through a nine-dash line on Chinese maps that encompasses about 90 per cent of its 3.5 million sq. km (1.35 million sq mile) waters. The sea provides 10 per cent of the global fisheries catch and carries $5 trillion in ship-borne trade each year.


Reactions from China


Reactions from China were on expected line. Beijing was quick to react, saying that the comparison was outrageous. In a commentary in the official news agency Xinhua on 5 February 2014, Ming Jinwei accused Aquino of taking an “inflammatory approach while dealing with maritime disputes with China” and described him never to have been “a great candidate for a wise statesman in the region”. The same write up called this comparison “amateurish”, “ignorant both of history and reality”, lame, inconceivable, unreasonable and inaccurate. It asserts that unlike the Nazi and Japanese claims, it owns all the South China Sea, including the reef and islands less than a hundred kilometres from the Philippines (and over a thousand kilometres from China) and therefore fair, reasonable and just. The commentary writes: “Relations between China and the Philippines have improved to some extent after the Chinese people extended a helping hand to the Southeast Asian country in the wake of a devastating typhoon. Aquino’s latest attack against China may very much have squandered this unique opportunity to further improve relations with China. Despite lame comparisons by the Philippines and Japanese leaders, the international community cannot ignore the fact that China has long chosen a path of peaceful development. China’s future is tied with its regional neighbors and global partners. Military adventurism has never been a policy option. The Philippines itself is an example that shows how Chinese neighbors can benefit greatly from expanding trade and investment ties with Beijing.”


China makes similar claims on areas close to Brunei, Malaysia, Vietnam and Taiwan. Of course, so far as Taiwan is concerned, China regards it as a breakaway province and threatens to annex by use of force. The Chinese audacity even extends to the proposition by some Chinese officials that suggests that China can even make a claim for all or part of the Philippines being part of “Greater China”. It is understandable why the Philippines’s worry is genuine and why it is calling the world for help to contain China and not let the situation escalate into a major war.


The United States backs the Philippines’ stand on seeking a peaceful and lawful solution. Admiral Samuel Locklear, head of the U.S. Pacific Command, and Daniel Russel, U.S. Assistant Secretary of State for East Asia and the Pacific expressed worry about increasingly assertive moves by China in the South China Sea. In a testimony to the Congressional subcommittee, Russel observed: “There is a growing concern that this pattern of behaviour in the South China Sea reflects an incremental effort by China to assert control over the area contained in the so-called ‘nine-dash line’, despite the objections of its neighbours and despite the lack of any explanation or apparent basis under international law regarding the scope of the claim itself.” The issue came up for discussion when the Secretary of State, John Kerry, visited Beijing in the second week of February 2014.


Emboldened by the Chinese leadership’s stand and with its apparent endorsement, provincial authorities on the Chinese island of Hainan extended fishing restrictions into international waters, which sparked protests from Hanoi and Manila. Despite strong opposition, the countries opposing China’s claims and moves have exercised restraint and not responded physically to avoid a Chinese backlash. China seems to be wary about the proceedings at The Hague court when they come up in March but does not show that openly. During a visit to Hanoi in September 2013, Chinese Foreign Minister Wang Yi warned Vietnam against joining the case. So far Hanoi has stood up to the pressure and is closely watching Manila’s legal moves, but clearly reserves the right to take any step if it feels its national interests are at stake. However, given the complex nature of Vietnam’s relations with China, Hanoi is unlikely to join the case at The Hague. Hanoi is carefully scrutinising developments closely, and seeking legal opinion from foreign experts.


Legal basis

Manila has hired five legal experts from the U.S. and Britain to fight its case at The Hague. These lawyers are now finalizing submissions to be put to the court before the March 30 deadline to show that China’s “nine-dash line” claim is invalid under the Law of the Sea. The arbitration tribunal has adopted rules that allow other states to intervene. It remains unclear if Vietnam will join the legal battle and join hands with Manila.


Beijing claims that it has reached an “important consensus” with Vietnam over how to resolve the South China Sea. Chinese Foreign Ministry spokeswoman Hua Chunying expressed China’s readiness “to maintain close touch with Vietnam and coordinate with them, to resolve the issue via friendly talks and consultation”. The tribunal rules do not mention third country interventions but the tribunal judges have power to decide on outside issues not covered by the document. According to Clive Schofield, a legal expert at the Australian National Centre for Ocean Resources and Security at the University of Wollongong, the wording of the rules allowed for considerable leeway. According to him, neither of the parties can block third party submissions if the tribunal members feel they will be helpful in determining the outcome of the case.


Assessment

This does not mean to suggest that China should not be brought to account for all the provocations it is causing to its neighbours by its aggressive posture. China’s neighbours, currently victims of its bullying tactics, are aware of China’s long history of having used its might to invade and conquer its neighbours and therefore have legitimate concern about China’s intentions. For the major part of the 20t century, China remained isolated but now has emerged as one of the world’s biggest economies and emerging superpower and craving to be recognised by the world as such. China seems to have the long-term goal to emerge as the world’s sole superpower. Seen from that perspective, the US is its only competitor and catching up with the US seems to be the primary goal. China knows that to reach that goal, there is no short cut; it has to further modernise and grow economically and militarily for some more years. To achieve that, China must search and secure sources of raw materials for its growing industries as well as continue to search for new markets. For this reason, China’s start has been in its neighbourhood, where it does not hesitate to aggressively dictate the course of international relations on its own terms even if those mean violating international norms and rule of law. Therefore, dealing with China is a real challenge. The smaller Southeast Asian countries ought to be on their guard not to fall into the Chinese trap of provocations but continue to seek diplomatic means to resolve differences and disputes.


(The writer, Dr. Rajaram Panda The Japan Foundation Fellow at the Reitaku University, Japan. E-mail: rajaram.panda@gmail.com)

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