One of the weakest military and economic powers in the region – the Philippines – took the strongest – China – to international court in 2013. The Philippines challenges China’s assertion of vast maritime claims over the South China Sea, pursuant to detailed rules and binding dispute resolution processes of the UN Convention of the Law of the Sea (UNCLOS), to which they are both party. China has scoffed.
It is tempting but mistaken to view this as a stark test of law versus raw might. In defending the decision to seek binding arbitration against China, the Philippine ambassador to the United States recently described “international law [as] the great equalizer.” That is a vast exaggeration. It is also a mistake to view legal rules and processes as blunt tools that lock parties to rigid stances. Sometimes that is true, but this case has pushed the relevant parties to clarify their positions while offering them a range of possible maneuvers. Recent moves and countermoves by the key players, large and small, shows that they all see legal arguments and processes as elements of power that must be integrated pragmatically – and sometimes incrementally – with their respective overall strategy towards maritime and territorial disputes.
In 2013, the Philippines took a bold step of instituting arbitration proceedings in the Hague against China over disputed South China Sea maritime claims. In doing so, the Philippines challenged China’s nine-dash line, which China has never clarified, leading many to interpret it as Beijing’s claim to much of the South China Sea. UNCLOS allows parties to request binding dispute resolution through the Permanent Court of Arbitration. The maximal goal of this proceeding would be to settle some of the biggest South China Sea maritime quarrels, though the arbitral panel cannot settle sovereignty over disputed islands and the many possible outcomes include a decision by that institution that it lacks jurisdiction or its resolution of only parts of the many conflicting legal claims.
China has boycotted the proceedings, arguing that the tribunal lacks jurisdiction because, among other reasons, China had expressly opted out of mandatory dispute settlement of matters related to sea boundaries when it ratified UNCLOS. In other words, China refuses to submit to formal and binding legal proceedings on this matter. China has so far even refused to file a brief with the arbitral panel, and it may choose not to appear before it for hearings. This is not so surprising, for a player that currently benefits from ambiguity about the full extent of its South China Sea claims has much to lose in the ruling. China does not want to lend the Tribunal legitimacy, and holds other forms of power – economic and military – it can bring to bear on the dispute. There is probably a dissenting view within the Chinese government, though, that believes it stands a better chance of having the case dismissed by pressing its jurisdictional arguments formally and directly in the Hague.
While holding to a stiff position against the formal proceedings, China took the step in December of publishing what amounts to its official legal position but in the form of an unofficial brief to the Tribunal. This sophisticated legal analysis of its prerogative to disregard the arbitration proceedings coincided closely with its deadline for submitting a brief to the Hague tribunal. Regardless of whether the arguments in its December paper will matter to arbitrators in the Hague, their wide publication helps to soften China’s image of bullying, portraying itself as committed to international law without compromising its stance against the Philippines’ call for binding arbitration.
The Philippines wanted Vietnam to formally join its case, while China lobbied and cajoled Vietnam not to do so. However confident China may be in its own legal arguments (probably more so with regard to the arbitral panel’s jurisdiction than with regard to the merits of the Philippines’ claims), it wants to avoid unified legal positions among smaller regional powers, just as it wants to divide them generally in negotiations. In December, Vietnam took a path somewhere in between. Without becoming party itself to the litigation, it sent a statement to the Permanent Court of Arbitration opposing several of China’s positions in the South China Sea. Vietnam’s statement to the panel reportedly included support for the court’s jurisdiction over the Philippines’ case, asking the court to give due regard to Vietnam’s legal interests in the matter and rejecting China’s nine-dash line. While not committing itself to litigating against China, Vietnam thereby aided its Philippine neighbor, further clarified its own position, perhaps in preparation for a future case of its own, and signaled that smaller regional players are unmoved by China’s efforts to dress up its aggressive maritime maneuvers in non-threatening legal clothes.
The U.S. State Department also published a December position paper, methodically casting legal doubt on China’s South China Sea claims. The U.S. government wanted to take a legal move that would subtly balance several objectives that are sometime in tension. It sought to avoid taking a hard position on specific, competing sovereignty claims in the South China Sea, but also to signal general support for the Philippines’ position on maritime law. The United States also finds itself in the awkward position of favoring in principle resolution of South China Sea disputes through international legal processes but declining to bind itself to compulsory processes through ratification of UNCLOS. To navigate a path through these policy and diplomatic constraints, the United States published its views without a specific addressee. The position paper – published as the latest in a series of maritime boundary studies – was intended for a regional and global audience, though the U.S. government was clearly aware that it might informally influence arbitrators in the Hague, who are currently scrutinizing the legality of the nine-dash line.
Like China’s paper, the U.S. paper is circulating widely inside foreign ministries and attracting substantial public commentary. It may seem ironic that the Chinese and American legal position papers are getting so much attention, since the former is often criticized for snubbing UNCLOS’s processes and the latter is often criticized for refusing to ratify UNCLOS. It is also appropriate given their power.
The legal moves and countermoves of the Philippines, China, Vietnam, and United States show that formal UNCLOS proceedings do not replace diplomacy. Rather, they add to both its complexity and set of instruments.