By Kai He and Huiyun Feng
The Permanent Court of Arbitration’s (PCA) ruling in the South China Sea case filed by the Philippines has been labelled a ‘sweeping victory’ against China. It concluded that China has no legal basis to claim historic rights within the nine-dash line in the South China Sea and that none of the land features in the Spratlys meet the criteria for an island that China — or any other country — can use to claim a 200-nautical-mile exclusive economic zone (EEZ).
Many countries — including the United States, Australia and Japan — welcomed the arbitration outcome and pressured China to comply with the ruling. Unsurprisingly, China rejected the tribunal’s ruling, and reasserted its ‘indisputable sovereignty’ over the South China Sea. The Chinese Foreign Ministry stated that the tribunal’s ruling is invalid and China does not ‘accept or recognise it.’ Although the original purpose of the arbitration was to resolve maritime disputes in the South China Sea, this ruling will have unintended negative consequences for regional security.
The Tribunal’s ruling breaks the ‘balance of ambiguity’ in the South China Sea disputes. One major cause of competing claims is the inherently ambiguous terms of the 1982 UN Conventions of the Law of the Sea (UNCLOS). Different claimants have interpreted the law to make claims in their own favour. No country has unchallenged claims in the South China Sea.
Although the legal ambiguity may make it hard to resolve the disputes, it provides a certain flexibility for all claimants to manage their behaviour and leaves room for compromises if necessary.
The Tribunal’s ruling officially ended this ambiguity by rejecting all of China’s historic claims. But it would be naive to believe that the ruling can resolve the disputes. No great power is likely to accept an international legal verdict that harms its national interests. The unintended outcome of the arbitration will be the continuous escalation of the disputes because no country, especially China, has the same manoeuvrability that it used to in making their South China Sea policy.
The Tribunal’s ruling pushes Chinese leaders into a tight corner, which may lead them to take risky actions in order to reverse their domain of losses. Although China made it clear in 2013 that it would not participate in the arbitration, the Tribunal ruling is a major diplomatic setback for China. Despite ignoring the ruling, China has lost face in the international community.
For Xi Jinping, a damaged international reputation will put his power and political legitimacy at stake inside China. Xi has no choice but to fight back against the tribunal’s decision, given nationalist sentiments in Chinese society.
According to prospect theory, people are more likely to take risky actions when they feel frustrated and cornered by a disadvantageous situation. And Xi has now been positioned in such a predicament. Although it is still not clear how China will regain its ‘loss of face’, further militarisation in the South China Sea, through military exercises for example, seems unavoidable in the near future.
The Philippines and other beneficiaries of the ruling will also face a ‘winning too much’ dilemma that may cause some self-righteous, yet unwise behaviour. As the major winner of the arbitration, the Philippines has to decide what to do next. Since the Tribunal has no enforcement mechanism, the victory will not be automatically or easily transferred to substantial territorial and maritime gains.
According to the arbitration, Mischief Reef is in the EEZ of the Philippines and China’s current occupation is ‘illegal.’ But China will not leave the Reef voluntarily after the ruling. The Tribunal also ruled that Filipino fishermen have the right to access the Scarborough Shoal, which has been under China’s tight control since 2012. Will the Philippines be willing and capable to take military actions against China’s ‘illegal occupation’ or ‘illegal control’? There is always a policy dilemma between might and right.
Another big winner of the Tribunal ruling is the United States. As the Tribunal concluded that Second Thomas Shoal and Mischief Reef are low tide elevations, and are therefore not entitled to a territorial sea, the United States will enjoy more ‘freedom of navigation’ (FON) in the region.
Last year, the United States started its military challenge against China’s land reclamation through a series of FON operations. The Tribunal ruling further strengthens the legitimacy of its FON operations in the South China Sea. But this self-righteous perception and related actions will definitely trigger more intensive competition between the United States and China that may not serve either country’s interests.
Although the arbitration has started a new phase of the disputes, it will not change the nature of world politics that is based more on power than rules. Merely hoping or forcing China to abide by the ruling will not resolve the South China Sea disputes. It is time for all parties, especially China and the United States, to cool down emotions and ambitions. To avoid escalating tensions, shelving the disputes and seeking cooperation might be a better choice than trying to resolve them.
(Courtesy East Asia Forum)
(Kai He is an Associate Professor of International Relations in the Griffith Asia Institute and Centre for Governance and Public Policy, Griffith University. Huiyun Feng is a Senior Lecturer of International Relations in the School of Government and International Relations,