On July 7, the Arbitral Tribunal at The Hague began its hearing on the case submitted by the Philippines against China regarding its South China Sea claims. As we get bombarded with news updates in the coming weeks, it is important to keep the broader significance of the case in mind.
In terms of principle, the case is important because it is a bold attempt to begin to untangle the knotty South China Sea disputes through the rule of law rather than the might makes right approach that China has been using over the past few years. Since 2009, China has increased its assertiveness in the South China Sea, including by seizing Scarborough Shoal from the Philippines in 2012, forcibly moving an oil rig into Vietnamese waters in 2014, building artificial islands, and encroaching even into the southernmost extent of its nine-dash line reaching into Malaysia and Indonesia (See: “Malaysia’s South China Sea Approach: Playing it Safe“). This disturbing and destabilizing pattern has continued despite repeated protests that it violates the United Nations Convention on the Law of the Sea (UNCLOS), other agreements like the 2002 Declaration on the Conduct of Parties Beijing inked with Southeast Asian states, and general principles like the peaceful settlement of disputes (See: “Does ASEAN Have a South China Sea Position?“).
What is the recourse for smaller states when a larger actor is breaking the rules and infringing on their rights? And is there a way to impose some kind of diplomatic cost on the offending state? This is where the case comes in. While various states have been crying foul and appealing to international law, there is no substitute for a neutral court making a decision on legal questions based on a common set of rules. This is what Philippine Foreign Secretary Alberto del Rosario meant when he said to the tribunal earlier this week that the court’s decision has global significance because it has an “impact on the application of the rule of law in maritime disputes.” In addition to the capitals world over that will be monitoring the decision closely, Malaysia, Indonesia, Vietnam, Thailand and Japan are directly observing the proceedings after being permitted to do so by the court, even though it declined to open the hearing to the public.
How does principle translate into practice? In the case, the Philippines is asking the court to rule on the validity of China’s nine-dash line as a maritime claim; the status of individual features that China occupies; and Beijing’s interference in Philippine activities in the South China Sea. If, in the best case scenario, the court largely rules in Manila’s favor on these questions, it may push China to significantly redefine its illegal nine-dash line. Since other South China Sea claimants have also registered their opposition to or sought clarification about China’s claims in this respect, the decision would benefit them as well in trying to settle their disputes with Beijing further down the line. It also has broader importance for other actors like the United States and Japan, since China’s claims and the way it secures them has increased tensions over freedom of navigation and overflight (See: “How Would the US Challenge China in the South China Sea?“).