Law and realpolitik in the South China Sea


China’s rejection of the international process represented by the Permanent Court of Arbitration at The Hague is both a missed opportunity and a disappointing corollary to its intransigence on the South China Sea dispute.
Beijing’s visceral opposition to third-party arbitration is based on the suspicion that the process is a means of exerting political pressure on it over territory it thinks is inherently Chinese.

Thus, its recent position paper dismisses the special arbitral tribunal – where the Philippines filed a memorial this year – as having no jurisdiction over the issue. Instead, it asserts the “historical rights” that give Beijing indisputable sovereignty over disputed features.

Clearly, this perspective leaves little room for a negotiated settlement of the festering maritime dispute in accordance with the impartial, transparent and tested mechanisms of international law.

China is merely offering another version of the argument that the South China Sea is its because it says so.

The fact that Vietnam has submitted its position to the tribunal initiated by the Philippines is a message that sovereignty claims do not stand simply because they are made.

Instead, the rule of law is crucial to the resolution of those claims, precisely because international arbitral agencies have no vested interest in the outcome, whichever way a verdict goes.

After all, a victory for Manila’s and Hanoi’s claims is not certain; yet, they have presented their cases at The Hague. This exemplifies the spirit that countries large and small should exhibit in their dealings with one another.

The opposite is likely to be the case now. At the heart of the issue is China’s “nine-dash” territorial claim, which covers virtually the entire South China Sea.

A repudiation of the nine dashes by the tribunal would provoke Beijing to dig in, and, indeed, to increase the stridency with which it defends its position. A new element of disquiet would be introduced into a situation that has stabilised somewhat lately. Matters would hinge on the military imbalance of power between China and the other claimants.

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