In China, June 7 may well be designated the national day of regret for it was on that day in 1996 that Beijing ratified the United Nations Convention on the Laws of the Sea (UNCLOS), an act that has apparently come back to haunt the mandarins of the People's Republic this week in the form of an unfavourable ruling by the Permanent Court of Arbitration (PCA) at the Hague, the Netherlands.
After examining a case brought by the government of the Philippines in 2013, a tribunal of the intergovernmental body found on Tuesday that some of China’s territorial claims over the South China Sea (SCS) were effectively invalid, and specifically that “there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’.”
This infamous line declared by Beijing marks what China views as its maritime territory, and it overlaps with the UNCLOS-recognised Exclusive Economic Zones (EEZ) of Vietnam, Malaysia and the Philippines, in addition to challenging territorial claims by Brunei and Taiwan.
China pre-emptively dismissed the entire PCA proceedings in 2014 by refusing to participate in the arbitration and unsurprisingly >rejected this week’s ruling as “null and void” and devoid of any “binding force.”
Yet the ruling is likely to have a geo-strategic ripple effect in a region that has for a long time been a hot zone for confrontational military manoeuvres. For years now, China has been creating artificial islands in the SCS, and sparked worldwide tensions when it unilaterally set up an Air Defence Identification Zone (ADIZ) in the East China Sea in 2013.
Although U.S. President Barack Obama >responded by sending two B-52 bombers into the ADIZ without the prerequisite notifications, a so-called “freedom of navigation operation,” Beijing did not stand down.
In the post-ruling scenario there is a risk that the hawks prevail in Beijing and Chinese maritime operations of this sort will escalate tensions further, risking a flashpoint.
The fallout of this could be severe in the region, especially considering that in recent months the U.S. has sailed a Nimitz-class aircraft carrier, as well as guided-missile destroyers into the SCS.
However, it is also possible that the PCA ruling is an inflection point for strategic reset as it increases pressure on Beijing to engage bilaterally with the Philippines and others, and begin the hard work of untangling the dangerous mess of overlapping territorial claims.
Already China has called upon the Philippines to withdraw its PCA case and return to bilateral negotiations, with one Chinese official noting that the “only way out [is a] peaceful solution through bilateral talks.” Whether bilateral territorial agreements would necessarily be consistent with UNCLOS, a rules-based order for the global commons of the open seas, is an open question.
Nevertheless, there are several implicit ironies in this maritime standoff, and these may lead to greater restraint among the belligerents.
First, while China has rejected UNCLOS principles in its claims against the Philippines, it is expressly invoking the Convention’s provisions in its claims against Japan, regarding the dispute surrounding the fuel-rich Senkaku Islands.
Second, the ruling draws attention to the glaring fact of non-ratification of UNCLOS by the U.S. Washington may now have to reconsider ratifying the Convention itself, especially if China decides to withdraw from it and thus undermine support for a global rules-based order.
Finally, it is but a few months before China hosts the G20 meeting. This is both an informal deadline for the necessary detente to begin, but also a genuine opportunity for rapprochement between Chinese and regional leaders, so all may not be lost in the murky depths of the SCS.
