Associate Fellow, Asia Programme
China’s sense of entitlement has collided with international law and, for the time being, lost. The way is open for a new regional understanding.
The ruling by an arbitral tribunal of five members based in The Hague was simple and devastating. It declares that ‘China’s claims to historic rights… with respect to the maritime areas of the South China Sea encompassed by the relevant part of the “nine-dash line” are contrary to the [The UN] Convention [on the Law of the Sea, UNCLOS]’. This is a result that Southeast Asia’s maritime countries have long sought. The way is now clear to resolve all the disputes in the region, if the participants choose to do so.
For decades, countries around the South China Sea lived under the shadow of a quasi-territorial claim that no one really understood. What did the U-shaped, nine-dashed line marked on Chinese maps actually mean? In 2009, the Chinese government attached a copy of the map to an official submission to the UN Commission on the Limits of the Continental Shelf and the region became alarmed. For the first time, it seemed that China was serious about asserting a claim to all the land and water inside the line.
On Tuesday that claim was dismissed as entirely incompatible with international law. Moreover, the Arbitral Tribunal ruled that not one of the Spratly Islands qualifies as an ‘island’. This ruling is at least as significant: it means none of the features in the archipelago are entitled to an exclusive economic zone. Theoretically it should now be simple to resolve all the maritime disputes in the southern part of the South China Sea. The Philippines, Malaysia, Brunei, Indonesia and the Philippines can, in principle, draw lines up to 200 nautical miles out from their coasts and agree compromises where they overlap. China is now irrelevant to this process because its nearest coastline is simply too far away.
All the 50 or so features in the Spratly Islands that are naturally above water at high tide would be granted a 12-nautical-mile territorial sea. The resulting settlement would resemble a Swiss cheese: large areas of exclusive economic zone measured from national coastlines punctuated by a few dozen ‘bubbles’ of disputed territory. This would not resolve the disputes about which country is the rightful owner of those ‘bubbles’ but it would settle the maritime disputes in the sea around them.
Of course, there are still wrinkles. Not least is the Philippines claim to the Malaysian province of Sabah in northern Borneo. This means that, for the time being, those two countries can’t settle the maritime boundary between them. They could, nonetheless, agree how far it projects offshore.
The bigger problem will be China’s attitude. Its response to the tribunal’s ruling has been angry but curiously misdirected. State media have focused their ire on questions of territorial sovereignty – even though the tribunal was barred from even considering this subject. China’s territorial claims to the rocks of the Spratly Islands are entirely unaffected by Tuesday’s ruling. There must be separate processes to resolve those questions.
China has many interests in the South China Sea – including defence, trade routes, fisheries and hydrocarbons – so it’s not surprising that it pursues whatever approach it thinks practical in order to protect them. However, the whole purpose of the UN Convention on the Law of the Sea was to create an international order that defended the rights of countries to exploit the resources off their own coasts without threat from other states further away. China was a full participant in the negotiations between 1973 and 1982 that created UNCLOS and, at that time, was a strong defender of the rights of coastal countries.
While it may feel that it has lost out from this week’s ruling, China has much to gain from a strong community of regional order in the South China Sea. Most Southeast Asian countries remain alarmed by China’s intentions − which is why, in the past few years, they have been strengthening their ties with the United States and increasing military spending. China’s wider interests would benefit from a de-escalation of this tension. Reassuring its neighbours would give them less reason to rely on the US.
Putting a new maritime order in place, based upon UNCLOS and commitments between China and the Association of Southeast Asian Nations, would be a major step towards this. It would also bring many associated benefits – not least cooperation to protect the region’s fish stocks, which are facing disastrous collapse. The first step is accepting the implications of Tuesday’s ruling.