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Friday, April 4, 2014

The Potential Precedents That Could Be Set By The Philippines’ Lawsuit Against China Concerning Beijing’s Actions In The South China Sea

This week the Philippines filed a lawsuit with the United Nation’s Permanent Court of Arbitration in the Hague. The suit alleges that China’s actions in the South China Sea violate Filipino territorial integrity as defined under the United Nation’s Convention on the Law of the Sea. Beijing claims most of the South China Sea via its 9 Dash Line (the demarcation line that China uses to justify its claim to most of the South China Sea) and has occupied territory such as Scarborough Shoal, Mischief Reef, and Second Thomas Shoal. In some cases China has gone far beyond setting up mere outposts. In 2012 Beijing established Sansha City on Yongxing Island. Sansha is a prefecture which is designed to administer the Spratly Islands, the Paracel Islands and the Macclesfield Bank. Essentially, China has been pursuing a policy of de facto annexation in the hope that in time Beijing will be able to force de jure recognition of Chinese claims to the territory. Suffice it to say, China’s neighbors are not happy with this approach which is why the Philippines filed the lawsuit in the first place. No matter who wins the suit the legal precedent will have a major impact on security concerns in the South and East China Seas.


The United Nations Convention on the Law of the Sea came into effect in 1994. The law’s mandate is as follow:

"The United Nations Convention on the Law of the Sea lays down a comprehensive regime of law and order in the world's oceans and seas establishing rules governing all uses of the oceans and their resources."

One of the key stipulations of the law is that it sets Exclusive Economic Zones (EEZ) as being 200 nautical miles (370 kilometers/230 miles) from a state’s maritime borders. Both China and the Philippines are signatories of the law (as is Japan, which we will discuss shortly). One of the areas occupied by China is Scarborough Shoal, which is only 220 km from the Philippines, but is 857 km from China. China claims that it has a right to the territory as Beijing claims that the Chinese have fished in the region as far back as 960 C.E. It is important to note that a finding in favor of China could set a legal precedent that implies that a country will have the right to exploit the resources of another country’s EEZ if it had used the territory at some point in the past. It is safe to say that such a finding could greatly complicate other territorial disputes.


If the court rules in favor of the Philippines it is unlikely that China will change its polices in the region in any significant manner. Beijing has no interest in reducing its presence in a region that sees half of the world’s shipping by tonnage pass through it each year. Essentially, great powers dominate the sea thus if China aspires for greatness Beijing must be able to dominate the South and East China Seas in the same manner that the United States has been able to dominate the waters of the Americas. China is also likely to face a degree of domestic instability in the coming years as it makes structural reforms, such as reigning in its shadow banking sector, which will likely be unpopular. It is also important to note that China's actions in the South China's Sea are very popular amongst a significant portion of the Chinese population. Stoking nationalist sentiment can help to maintain social stability during a time of unpopular reform.


If the lawsuit favors the Philippines the ruling could actually support China's strategic interests in the East China Seas. In September of 2012 Japan nationalized the Diaoyu/Senkuku Islands. This action angered Beijing who said that China would not, "sit back and watch its territorial sovereignty violated." Since then both sides have strengthen their security presence in the region. China also imposed an Air Defense Identification Zone over the region in November of 2013. A ruling against China’s actions in the South China Sea could set a legal precedent that could apply to Japan’s actions in the East China Sea. Whether or not this would reduce tension remains to be seen, as both countries will presumably act in their perceived interests. That said, a legal ruling could allow the countries to make some concessions while saving face. This is important as tensions are only going to get worse. For example, it is likely that Japan will reform its pacifist constitution (which could trigger a preemptive Chinese response in the East China Sea). Such an action would further complicate a difficult situation. Given that the United States will back Japan, and is making security arrangements with other regional players such as the Philippines, we find ourselves in a context where tensions could escalate quickly and result in a large, long-term conflict. Anything that could ameliorate this situation, such as the potentially face saving option that a legal ruling could provide, should be monitored closely. After all, instability in shipping zones as important as the South and East China Seas impacts most of the global supply chain and thus the vast majority of the world’s population.

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