IN the next few weeks, the Permanent Court of Arbitration (PCA) in the Hague will rule on the case brought by the Philippines against China concerning the legality of the latter’s “nine-dotted line” claim over the South China Sea under the United Nations Convention on the Law of the Sea (Unclos).
I hope I am wrong but the outcome is predictable, bearing in mind the strong lobby and assertive efforts by the United States and some European countries to favour the Philippines.
Perhaps a general view of what is happening is necessary to understand the issue.
In the interest of maintaining peace and stability in the South China Sea (SCS), Asean countries and China, through consensus, initiated the “Declaration on the Conduct of Parties in the South China Sea”, known as the DOC, in November 2002.
The DOC provided a framework for settling disputes related to territorial and maritime rights in the region, expressing that these should be resolved through negotiations by sovereign states directly concerned both in accordance with the applicable rules of international law and in compliance with the spirit of the DOC.
A period of sustained relationship and stability followed but in 2012, the pivot-to-Asia policy of the US changed the political landscape in the region. Simmering tensions began to build up, underscored by the US hinting for a stronger response to China’s maritime claims and “freedom of navigation”.
In January 2013, the Philippines broke rank and invoked Article 287 of the Unclos to convene an ad hoc tribunal at the PCA on grounds that:
1) The nine-dash line is contrary to Unclos provisions which should be the only basis for maritime sovereignty and jurisdiction;
2) A number of contested maritime formations are not entitled to a 200 nauticle mile exclusive economic zone (EEZ); and
3) China’s law enforcement and fisheries behaviour in the SCS is contrary to Unclos obligations and interferes with the Philippines sovereignty.
On its part, China rejected and refused to recognise the PCA’s authority and opted out of the Court’s formal proceedings, citing its violation to:
1) Article 298 of Unclos which explicitly “renounced its willingness to compulsory arbitration related to maritime delimitation etc.; and
2) November 2002 consensus reached between the Asean countries and China in the DOC of parties in SCS which constitutes an agreement to resolve disputes through dialogue and negotiations.
Nevertheless, the PCA, on Oct 29, 2015, announced that it “had power to hear the case” and also rejected the argument in China’s position paper on the 2002 DOC on the South China Sea.
We can see the dichotomy of opinions concerning the rules of law but the crux of the matter is China’s non-participation in the PCA, which raises questions on the legality of the proceedings.
Perhaps the wise words of UN Secretary General Ban Ki-moon, which he said in January 2013, could infuse some good sense into the affairs: “I have been following this situation carefully. It’s important for those countries in the region to resolve all these through dialogues in a peaceful and amicable way. The UN, if necessary, if requested, is ready to provide technical and professional assistance but primarily, all these issues should be resolved by parties concerned.”
As an Asian, my hope is that the Court will withhold the verdict to defuse tension in the region, which has been made worse by the deployment of massive military assets by the US and allies supporting the Philippines.