Littoral combat ship USS Fort conducting routine patrol in US Pacific Fleet
Source: US Pacific Fleet
In 2016, a series of developments in maritime-Asia drew international attention to the territorial disputes in the South China Sea, none more so than the Philippines vs. China Arbitration over maritime rights and jurisdiction in the littoral seas. On July 12, 2016, a tribunal at the Permanent Court of Arbitration (PCA) at Hague passed a landmark on the matter, ruling that Beijing’s claims of historic rights within the nine-dash line are without legal basis. It further concluded that Beijing’s activities within the Philippines’ two-hundred-nautical-mile exclusive economic zone (EEZ), such as illegal fishing and environmentally damaging artificial island constructions, constituted and infringement of Manila’s sovereign rights.
In many ways, China had only itself to blame for the debacle. Beijing’s first reaction to the Philippines’ legal appeal had been to ignore the matter altogether – as if not acknowledging the case would effectively delegitimise it. Given the high level of international interest in the affair, however, it was forced to make a course correction, issuing a position paper in December 2014 clarifying its official stance on the issue.[1] Unfortunately for Beijing, its contention that Manila had violated the United Nations Convention of the Law of the Sea (UNCLOS) by filing a petition on a matter of ‘sovereignty’ and ‘territorial jurisdiction’ failed to convince judges at the PCA, who ruled comprehensively in favour of the Philippines.[2]
Notwithstanding the maritime legalese surrounding the case, the technical nuances of the points raised reveal an underlying narrative. It is important to note that when Manila filed proceedings under Annex VII of the UNCLOS in July 2013, it was smart enough to invoke only those provisions that allow for compulsory arbitration. Fully aware that territorial disputes are beyond the remit of UNCLOS, the Philippines’ legal team dressed-up their case as one of historical rights and judicial clarifications on the applicability of UNCLOS provisions. This is significant because many of China’s operational moves in the region after the verdict reflect a sense of betrayal at being legally ambushed by a ‘lesser’, though legally stronger, opponent.[3]
At the heart of the Philippines’ submission were questions about the legal validity of China’s nine-dash line’ in the South China Sea. Manila framed its petition to seek a clarification from the court whether state rights and obligations in the waters, seabed, and maritime features of the SCS could be demarcated by something as arbitrary as a hand-drawn line on a chart. Simply put, Manila asserted that China’s maritime map of the SCS was of dubious provenance, and claims arising from it were an outright violation of the law.
A Flawed Legal Strategy
China’s belatedly mounted legal defence was innately flawed. Beijing implausibly argued against the tribunal’s mandate to interpret the application of the UNCLOS; erroneously invoked Art 298, citing its voluntary opt-out of compulsory arbitration under the UNCLOS; and unconvincingly petitioned for the dismissal of the Philippines’ case, invoking the Declaration of the Conduct of Parties (DOC) in the South China Sea.[4] Nothing in the text of that agreement, the judges pointed out, imposed any obligation on a state to eschew legal remedies in pursuing a just redressal. Yet, until July 12, 2016 when the Tribunal passed its final judgment, few had believed that China would face such a humiliating loss. It came as a surprise that the tribunal ruled in favor of the Philippines on almost every count, unanimously rejecting nearly all of China’s maritime claims in the region.
The felicity with which the tribunal tackled legal technicalities deserves acknowledgment. The court rightly held that all the territories in the contested Spratly Islands are reefs or rocks, and not islands – an important distinction, as under UNCLOS, reefs cannot generate a claim to the surrounding waters or airspace, and rocks serve as the basis only for a maritime claim of 12 nautical miles. The judges’ classification of the features on the Spratlys as “less than Islands” negated the possibility of any being used to proffer claims of a 200-nautical-mile exclusive economic zone.
China’s real problem, it appears, is that the court’s ‘non-territorial’ judgment implicitly invalidates Beijing’s territorial claims in the South China Sea.[5] Before the verdict, Chinese leaders assumed that their South China Sea claims would eventually be recognised, because the features under Chinese control will, at some point in the future, be awarded the status of islands. Beijing believed that its “islands” in the Spratlys would legitimise its legal claim over territory enclosed within the nine-dash line, without having to resort to any form of overt aggression.
The tribunal declaration, however, that the Spratly features are only reefs or rocks, deflated Chinese claims. China’s outposts in the Spratly group are now rendered isolated enclaves floating in the Philippines’ exclusive economic zone—lying within 200 nautical miles of that country’s territory. This is one reason why Beijing has moved to quickly accept the Philippines’ suggestion for a maritime sanctuary around the Scarborough shoal and jointly exploit South China Sea resources elsewhere.[6]
If negating China’s historical claims was not enough, the court also found Beijing to be guilty of conducting illegal maritime activities inside the Philippines’ exclusive economic zone. Chinese vessels, the judges held, were not only fishing in unauthorised fashion, they were routinely engaged in dangerously manoeuvers by approaching Philippine boats too close, preventing them from fishing, and extracting oil within the zone. Turning its knife in an already aching wound, the tribunal then censured China for its construction of artificial islands in the region, which it determined had caused severe environmental damage and heightened geopolitical tensions.
China’s Operational Response
Despite the clarity brought by the verdict to many contentious issues, it did not plug all loopholes. Its biggest inadequacy is the lack of an honorable face-saver for Beijing.[7] China was perhaps aware that the court would pass an adverse ruling, but was still taken aback by the severity of the final verdict. Expectedly, it provoked an immediate response from the PLAN that moves to expand its operational presence in the South China Sea. Within days of the judgment, Beijing upped the tempo of its reclamation activities and began creating military infrastructure on islands under its control in the SCS. If the international community had any doubts, China made it clear that there is no provision in international law to enforce a UN court’s binding judgment.
Since then, Chinese military and non-military vessels have regularly undertaken activities to strengthen their de facto control of the area. Far from being pushed into adopting a more conciliatory approach, Beijing has doubled down on a strategy of “passive assertiveness” – methodically expanding its regional military footprint while avoiding risky manoeuvres that could trigger an accidental clash. Besides stepping up its fortification of military outposts in the Spratly Islands in open defiance of the tribunal’s ruling, China has constructed reinforced aircraft hangars on Subi, Mischief and Fiery Cross Reefs. These new facilities have potential military usage and expand the PLA’s power projection capability in the South China Sea. In combination with the first, Beijing has moved to mobilise its massive coastguard fleet to mark its presence and intimidate non-Chinese fishermen in Southeast and East Asia, in the process substantially raising the risk of an inadvertent clash.
The PLAN’s South China Sea patrols and exercises since the ruling have consolidated China’s wider strategic footprint without adopting unnecessarily provocative military postures. Rather than establishing an air defence identification zone – which would have been hard to enforce – Beijing initiated a new program of “air combat patrols”, flying nuclear-capable H-6K bombers and Su-30 fighters over disputed island features in an intimidating display of its airpower and resolve.[8] Worryingly, China’s joint maritime exercises with friendly navies incorporated “island-seizing drills” and anti-submarine warfare.
Meanwhile, despite undertaking multiple FONOPS in the South China Sea since the verdict, the US seems to be at a loss of options in tackling China’s provocations. Despite warning from the Obama administration and President-elect Donald Trump, Beijing has refused to mend its ways. In December 2016, a Chinese boat confiscated a US underwater drone in the waters off the Philippines, challenging US operational primacy in the SCS.[9] The UUV was returned days later, but Beijing showed how it was taking unkindly to intrusive US maritime operations, as well as unconsidered remarks by Trump and his transition team.
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