EAST ASIA POLICY PAPER 8 M AY 2016 Limits of Law in the South China Sea Paul Gewirtz Brookings recognizes that the value it provides to any supporter is in its absolute commitment to quality, independence, and impact. Activities supported by its donors reflect this commitment, and the analysis and recommendations of the Institution’s scholars are not determined by any donation. Author Acknowledgements I am grateful to Jeffrey Bader and Julian Gewirtz for their valuable suggestions for improving this paper, to my Yale colleague Graham Webster for sharing in the inquiry and bettering the end-product, and to Robert Klipper and Robert Nelson for their exceptional research assistance and other help with this project. Limits of Law in the South China Sea he vast South China Sea has become one of There is not yet a path ahead for resolving the many the world’s most dangerous hotspots. Through disputes and controlling the serious risks they pose, Twords and deeds, six claimants including Chi- but the United States has articulated an approach. na contend for control over numerous small land We have stated that we do not take a position on the features and resource-rich waters, with the United competing sovereignty claims but we have called for States also heavily involved because of alliances and a law-based and rules-based resolution of the com- our own security and economic interests. The great peting claims. As President Obama has recently geo-political question of our age, whether the Unit- said, the United States is committed to “a regional ed States as the established dominant superpower order where international rules and norms—and can co-exist with a re-emerging powerful China, the rights of all nations, large and small—are up- sits on the sea’s horizon like a huge and taunting held. [Disputes] between claimants in the region Cheshire Cat. must be resolved peacefully, through legal means, such as the upcoming arbitration ruling under the Most of the contending countries have been aggres- U.N. Convention on the Law of the Seas, which the sive in recent years, but China has been especially parties are obligated to respect and abide by.”1 bold in staking out very broad claims to sovereignty and related rights to land features and waters in the This statement invokes one of the hallmark ideas South China Sea. It has also been bold in undertak- of President Obama’s foreign policy: internation- ing “land reclamations” that build on land features, al issues should be resolved in a rules-based way turning claims into physical structures and threat- through the rule of law. The point of this essay is ening further militarization. Its rapidly developing both simple and regretful: in theory, a rules-based naval presence and capability have raised added con- and law-based approach in the international arena cerns among China’s weaker neighbors as well as the is an admirable aspiration, but law will not solve United States, whose military presence has greatly the dangerous problems in the South China Sea. contributed to peace and stability in the Asia-Pacific More specifically, the upcoming ruling in the case for decades. The risk of accidents or small conflicts brought by the Philippines against China before an leading to dangerous escalations is constant. arbitration tribunal under the U.N. Convention on LIMITS OF LAW IN THE SOUTH CHINA SEA THE BROOKINGS INSTITUTION: CENTER FOR EAST ASIA POLICY STUDIES 1 the Law of the Seas (UNCLOS) will not solve the UNCLOS provides not only rules but also reme- problems or even make major headway in resolving dial mechanisms for countries that believe that them. other parties to UNCLOS have violated its provi- sions. Both the Philippines and China, along with 164 other countries, are parties to UNCLOS— I. Background although the United States is one of the few that is not. In 2013 the Philippines invoked remedial The South China Sea is a huge sea of 1.4 million provisions specified in UNCLOS and brought 15 square miles, bordered by nations that contain ap- claims against China before an UNCLOS arbitra- proximately 2 billion people. About a third of the tion tribunal at the Permanent Court of Arbitration world’s shipping goes through its waters, which also in The Hague. This is the case referred to by Presi- provide vast amounts of food and whose seabed is dent Obama above. China immediately announced rich in oil and gas. Scattered through the sea are its “resolute opposition” to the Philippines action, small land features—often tiny, often underwater called upon the Philippines to “return to the right during high tide. These fall into two main group- track of resolving the disputes through bilateral ne- ings, the Paracel Islands in the northern part of the gotiations,” and said that “China does not and will sea, and the Spratly Islands in the southern part. never change its position of non-acceptance of and China, Taiwan, the Philippines, Vietnam, Brunei, non-participation in the arbitration.”2 China has and Malaysia all claim sovereignty over some of kept this pledge, although it issued a detailed “Posi- these land features and waters, and the claims con- tion Paper” on December 7, 2014,3 that, along with flict. China, through its “nine-dash line” map and other statements, have functioned as de facto filings many statements, has claimed at the very least sov- in the case. ereignty over all the islands and rocks in the South China Sea and rights over the adjacent waters. The A threshold question the case presented was wheth- other five stakeholders have conflicting claims over er the UNCLOS arbitration tribunal had “juris- land features that in turn produce numerous addi- diction” to decide these 15 claims—jurisdiction tional overlapping and conflicting claims over ad- being the legal term to indicate that a tribunal has jacent waters and how they are used. Neither the the power to decide the substantive issues in a lit- vastness of the sea nor the smallness of the disputed igation, a question separate from how the tribunal land specks has prevented an escalation in intensi- might decide the “merits” of the substantive issues ty in recent years. Concerns about security and re- if indeed it has “jurisdiction” to decide those merits. sources have driven much of the tension, and rival nationalisms in stakeholder countries breathe fire On October 29, 2015, the UNCLOS tribunal issued on the waters. its much misunderstood 151 page ruling on “juris- diction.” The tribunal concluded that it indeed had UNCLOS is one of the world’s great internation- jurisdiction over the Philippines’ case—but conclud- al treaties, and its preamble begins with the heroic ed that it had jurisdiction over only seven of these statement expressing “the desire to settle…all is- claims. It did not accept jurisdiction over the other sues relating to the law of the sea…as an important eight claims, including the critical claims that Chi- contribution to the maintenance of peace, justice na’s famous “nine-dash line” is inconsistent with UN- and progress for all peoples of the world.” Unlike CLOS. Regarding this and the other eight claims, the many other heroic efforts, this one is not a grand tribunal deferred decision on whether it had jurisdic- gesture, but rather a tedious verbalization of human tion, concluding that the question of “jurisdiction” thoughts about endless minutia that, unaddressed, was tied up with the “merits” and therefore should be can cumulatively cause much human misery. postponed until its decision on the merits. LIMITS OF LAW IN THE SOUTH CHINA SEA THE BROOKINGS INSTITUTION: CENTER FOR EAST ASIA POLICY STUDIES 2 China immediately denounced the jurisdiction rul- that the arbitration tribunal and law can make only ing as “null and void” with “no binding effect on a very limited contribution to resolving the South China,” and accused the Arbitral Tribunal of having China Sea crisis. Law will not save us from continu- “abused relevant procedures and severely violated ing to focus predominantly on negotiations and, the legitimate rights that China enjoys as a State yes, power politics. Messaging after the tribunal’s Party to the UNCLOS” and “eroded the integrity decision should not make the tribunal’s decision the and authority of the UNCLOS.”4 It labelled the main pivot point of the path forward, which will Philippines’ initiation of the arbitration “a politi- need to focus most intensively on the major matters cal provocation under the cloak of law” and again the tribunal will surely not touch on and that must called on the Philippines to resolve its disputes with be urgently addressed by other means. China “through negotiations and consultations.”5 There are four basic reasons that the arbitration tri- Over four days in November 2015, the arbitration bunal can make only a very limited contribution: tribunal heard oral arguments on the merits. No one from China appeared or participated in the oral 1. Despite much confusion in the media, all arguments. The tribunal’s much-awaited decision concede that the tribunal has no jurisdiction in the case is expected sometime in May or June. to decide any issues of “sovereignty” over the Nations need to be thinking through now how they islands and rocks in the South China Sea, will react, even though all must make conjectures even though these “sovereignty” issues are about what the tribunal will do—although only a the heart of the many controversies. small number of people know the relevant law well 2. All concede that China was within its legal enough to be ready to understand the tribunal’s rights under Article 298 of UNCLOS after decision, much less understand the significance of ratifying the treaty in explicitly exempting it- the decision or how it may affect the path forward self from compulsory dispute resolution of a in addressing the dangerous problems in the South wide swath of issues concerning “sea bound- China Sea.