Philippines, ICJ and the South China Sea Dispute

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Amid escalating tensions in the South China Sea, the peace and stability of the region is at stake. The protracted maritime disputes involve China, Taiwan, Brunei, Malaysia, the Philippines, and Vietnam, with each nation having overlapping claims on the South China Sea islands. China’s land reclamation and island militarisation activities and the US’ demand for greater freedom of navigation adds to the already deteriorating situation in the South China Sea. Further, the launch of China’s Gaofen-4 geosynchronous satellite in December, 2015 to keep a close vigil on the US aircraft carriers in the area has also raised alarms in the region.

While Vietnam has been directly confronting China by trying to match the Chinese assertive postures, the Philippine strategy is to focus on strengthening its military capabilities with the help of major regional and extra-regional powers. Vietnam is working towards a missile-based maritime deterrent system; the Philippines, on the other hand, has a long way to go in terms of developing its naval prowess. Nevertheless, recent agreements between the Philippines and Japan are expected to facilitate import of Japanese military equipment . This may be seen as a tiny yet significant step by the Philippines’ towards deterring China in its military build-up in the disputed areas. It may also be noted that China occupies seven out of fifty features in the Spratly islands. On the occasion of the signing of the unprecedented defence pact between the Philippines and Japan, the Philippines’ Defence Secretary, Voltaire Gazmin stated:

“The agreement provides a framework for the supply of defense equipment and technology and will allow the Asian countries to carry out joint research and development projects… What underpins this agreement is not only our desire to enhance our respective defence capabilities but also to contribute to regional peace and stability.”

 The Philippines, which is basing its claim on the United Nations Convention on the Law of the Sea (UNCLOS), has gone a step further by filing a case against China in the Permanent Court of Arbitration (PCA), at the Hague, constituted under UNCLOS. The Philippines’ claim before the PCA that China’s moves in the disputed sea are in violation of the UNCLOS has found the ready backing of countries such as the US, Japan and Vietnam, as they find China’s rising military and diplomatic assertions a threat to their respective interests in the region as also a challenge to the regional stability. In fact, Vietnam is also planning to file another individual case against China in the arbitration tribunal. Several countries including Indonesia, Japan, Malaysia, Thailand and Vietnam have been sending their respective observers to attend the procedural hearings to be able to take an informed position on the unfolding long-term strategic scenario in the region.

Though China is not taking part in the hearings and has arguably followed a ‘neither deny, nor confirm’ policy on the issue, the Philippines is hopeful for a favourable ruling. It was in January 2013 that the Philippines lodged a case against China questioning its U-shaped ‘nine-dash line’ claim, and whether such claims are legitimate under the framework of the UNCLOS. In the case filed at the Hague, the Philippines has sought a clarification whether certain formations which China asserted fell within its 370 Km Exclusive Economic Zone, were rocks or islands, as rocks are not entitled to an Exclusive Economic Zone. The Philippines also claims that China’s military build-up as well its land-reclamation activities are encroaching into the sphere of the Philippines’ EEZ. China, on the other hand, argues that the question is of territorial sovereignty, and therefore should be dealt with bilaterally under customary international law instead of the PCA which has no jurisdiction over territorial sovereignty issues.

While the year 2016 is expected to be decisive in terms of the Philippines’ case against China involving the South China Sea dispute, there is a bleak possibility that the arbitral award will bring any relief to the parties. This is also due to the fact that China decided to opt out of the dispute settlement mechanism when it became a signatory to the UNCLOS. China, which does not prefer multilateral negotiations to any of its outstanding issues with other countries, is not in favour of the tribunal’s involvement in the dispute. China’s official position on the case has been that the dispute be resolved bilaterally and under the framework of the Declaration on the Conduct of the Parties in the South China Sea between China and Southeast Asia’s flagship organisation, the ASEAN. Accusing the Philippines of not communicating with China for direct negotiations on the matter and breaching the bilateral consensus, the Chinese Foreign Minister Wang Yi, recently stated, “The Philippines did not follow international rules when it did not meet one-on-one with China to try to resolve their differences in the South China Sea and instead took them to international court”.

While the ruling will not have any long-term impact on the future of the conflict as China has not been participating in the hearings and would not accept the ruling; the Philippines has been successful enough in internationalising the issue and thus, putting diplomatic pressure on China. This is crucial as the speculations about China establishing an Air Defence Identification Zone over the Spratly Islands are rife. If the arbitral award is in favour of the Philippines, it might lead China to rethink its policy in the region. This is also likely to encourage countries such as Vietnam and Malaysia to plead their cases at The Hague.

In fact, it is a diplomatic victory for the Philippines that despite China’s refusal to be a part of the case hearings, it has chosen to clarify its position and policy on the South China Sea. It may be noted that in December 2014, the Chinese Ministry of Foreign Affairs released  its position paper on the matter of the arbitration initiated by the Philippines.

However, these are all short-term solutions to the problem. Taking China to the arbitral tribunal may not be as effective as the Philippines expect it to be. What the Philippines may do simultaneously is to reinforce its defence ties with other countries. Stepping up its military capabilities and working on strengthening the regional security architecture are critically important in that regard. The recent agreement between the US and Philippines on five-base locations under the Enhanced Defence Cooperation Agreement is certainly reassuring for the Philippines.

Considering the complex situation in the region, it remains to be seen how the dispute would unfolded itself. Nevertheless, in the long run, it is in the best interest of the countries involved to respect each other’s sensitivities towards the dispute. It will be vital that the parties to the conflict sit across the negotiating table and sort out their respective overlapping claims through mutually agreeable and peaceful multilateral means.

Multilateral negotiations resolutely aimed at achieving a concrete solution are the only panacea to this multilateral conundrum. While that may seem quite unachievable right now, the nations could expedite their negotiations on a binding Code of Conduct in the South China Sea under the framework of the ASEAN, so that peace and stability in the region is maintained.

(Dr. Rahul Mishra is a Fellow with ICWA. The views expressed are author’s own and do not represent the views of ICWA)