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The South China Sea’s upcoming judgement day is going to be a tipping point for tensions and a watershed for regional dynamics, writes Jacqueline Espenilla.
China has long claimed that the South China Sea dispute can only be resolved by negotiation. This belief is purported to be the rationale for its refusal to participate in the arbitration case initiated by the Philippines under the auspices of the United Nations Convention on the Law of the Sea (UNCLOS). From China’s perspective, the UN-backed process in the Permanent Court of Arbitration amounts to nothing more than Philippine legal sabre-rattling and constitutes “an abuse of the compulsory dispute settlement procedures”.
In its October 2015 award on jurisdiction and admissibility, the tribunal found that the two countries never entered into a legally binding agreement to settle their disputes via bilateral negotiations, nor did they ever agree to exclude any other dispute settlement procedure. The tribunal further emphasised that China’s repeated insistence on negotiating indefinitely cannot dislodge the “backstop of compulsory, binding procedures” provided by Part XV of UNCLOS, especially since the Philippines never actually relinquished this right during their years of dialogue with China.
South China Sea's judgement day | Kerry BrownBeyond legal speak, one practical question should be considered: does negotiating with China still make sense at this point? Rodrigo Duterte, the Philippines’ new President, seems to think so. In a statement made on July 5, he affirmed his pre-presidency stance on re-opening bilateral discussions with China, saying that ultimately, he would proceed according to the greater interest of the country. China has welcomed this seeming policy shift by immediately having Chinese Foreign Ministry Spokesperson Hong Lei reiterate China’s desire to “work in unison” with the Philippines.
The arbitral tribunal’s upcoming 12 July judgement will likely be the tipping point for tensions and will certainly be a watershed for regional dynamics. Assuming that bilateral negotiations were to be revived in the aftermath, one cannot help but wonder if there is anything left to discuss.
According to early reports, talks, if they happen, will likely focus on “joint development and cooperation in scientific research”. But what does that mean exactly? In the 1980s, Deng Xiaoping advocated the idea of “setting aside disputes and pursuing joint development” with other claimant countries in relation to the Diaoyu/Senkaku Islands and the Spratlys.
This concept, as explained by China’s Ministry of Foreign Affairs, contains four elements, the first and most essential being that “the sovereignty of the territories concerned belongs to China”. This immediately stands out as a worrying indication of China’s mindset going into any negotiations involving the South China Sea. Nothing that the Chinese government has said or done in the intervening years has assuaged concerns that it will be an unreasonable counterparty.
It is this intractability, coupled with the breath-taking ambiguity of its nine-dashed-line territorial claims, that makes it so difficult for South China Sea claimant countries like the Philippines to sit down with China.
Moreover, China’s actions speak louder than its words, and the message being conveyed is crystal clear: it will not compromise. There is thus a fundamental disconnect between the underlying principle of negotiations – finding a mutually acceptable middle-ground between competing positions – that China purportedly supports, and its increasingly assertive posture in the South China Sea, which of late has begun to approximate the behaviour of a typical neighbourhood bully.
The most notorious and visible of China’s assertions is its massive “island-building” program on a number of disputed features in the South China Sea, an effort widely perceived to be an attempt to change the status quo ahead of the tribunal ruling. China has also adopted a defensive-offensive posture that involves everything from ratcheting up the presence of ships, aircraft and even nuclear-armed submarines in the disputed area, to threatening the establishment of an Air Defense Identification Zone over the South China Sea. Its conduct of military drills – no doubt a strategic show of strength – in the days leading up to the arbitral ruling likewise emphasises the absoluteness of its position.
Winners and losers from the South China Sea judgement | Malcolm CookBut the stark reality is that the 12 July judgement, though widely predicted to be favourable for the Philippines, will likely just be a paper victory given the limited scope of the issues under consideration and China’s defiant attitude to a rules-based order at sea. This means that, notwithstanding China’s intransigence, the Philippines has little choice but to reach for low-hanging fruit in terms of avenues for re-building trust and confidence, and ultimately, find ways to reach a mutually acceptable agreement in accordance with UNCLOS and other relevant legal instruments.
So does negotiating with China make sense? Yes, in a manner of speaking, and only if the Philippines manages to leverage the outcome of the arbitration case in future talks with China. In any case, the Philippines should still proceed to sit at the table with an abundance of caution and an undiminished awareness of its rights and entitlements under international law.
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