The day after: Enforcing The Hague verdict in the South China Sea

It was an unequivocal rebuke of China’s expansive maritime claims and increasingly assertive posturing in adjacent waters. An arbitral tribunal, constituted under Article 287, Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS), handed the Philippines a landmark victory against its giant neighbor. Most experts anticipated a favorable outcome, but few predicted its breadth. Not only did the tribunal exercise jurisdiction on almost all of the Philippines’ arguments, it also ruled favorably on the most thorny and consequential items, particularly China’s doctrine of “historic rights.”

By skillfully limiting its case to questions of “sovereign rights” and maritime entitlement claims, the Philippines transformed the UNCLOS into a primary legal reference for resolving the South China Sea disputes. Unsurprisingly, China rejected the verdict with characteristic braggadocio, dismissing it as a “a piece of scrap paper” that is “null and void” in the view of the Chinese nation. It has insisted that the arbitration body has gone beyond its mandate by ruling against China’s claims in the South China Sea.

But as legal experts have argued, it is ultimately up to the arbitration bodies—not signatories—constituted under the aegis of the UNCLOS to decide whether they can exercise jurisdiction over a maritime dispute or not. Last October, the arbitration body flatly rejected China’s invocation of exemption clauses (Art. 298, Section 2, Part XV) under the UNCLOS.

Contrary to China’s claims, the verdict, in accordance to Article 296 as well as Article 11 of Annex VII of the UNCLOS, is final and binding. As a signatory to the convention, it is incumbent upon China to comply accordingly. But the question of enforcement has cast a long shadow on the momentary triumphalist deluge in Manila and other like-minded capitals, which welcomed the verdict as a milestone in promoting ruled-based resolution of maritime disputes.

No wonder the newly-inaugurated Rodrigo Duterte administration called for patience, sobriety, and self-restraint. Without the support of its key allies, particularly the United States and Japan, and regional players such as the Association of Southeast Asian Nations (ASEAN), the Philippines face an uphill battle in translating its de jure victory into de facto gains on the ground.

But what is at stake here isn’t only the Philippines’ interests within its exclusive economic zone (EEZ), but no less than the future of the regional security architecture. And this is precisely why the United States, which has taken up the cudgels for upholding international law by protecting freedom of navigation in global waters, should immediately ratify the UNCLOS. Otherwise, its moral authority as the anchor of East Asian order and emerging constrainment strategy against China will continue to come under question.

A Clean Sweep

The verdict didn’t fully nullify China’s expansive claims in adjacent waters, but it dramatically compressed it, at least in the eyes of international law. The tribunal ruled that China’s doctrine of “historic rights,” which serves as the basis of its “nine-dashed-line” claims, is “incompatible” with modern legal regimes, specifically the UNCLOS. In the tribunal’s assessment, “there was no evidence that China had historically exercised exclusive control over the waters or their resources.”

Since the UNCLOS and arbitration bodies under its aegis can’t exercise jurisdiction over territorial disputes, the tribunal fell short of determining the ownership of contested land features in the area. Yet, it further reduced China’s claims in the area by ruling that there are no naturally-formed “islands”—land features that can independently support human habitation—in the Spratlys.

Most land-features occupied by China, the court ruled, are low-tide-elevations, which can neither generate sovereignty claim nor enjoy maritime entitlements. Chinese-occupied land features such as the Johnson South Reef, Hughes Reef, and the Scarborough Shoal were determined as “rocks,” which can at most generate 12 nautical miles of territorial sea, but can’t generate their own EEZs.

With China not possessing even a single island in the Spratlys, the verdict made it clear that the Asian powerhouse doesn’t have any overlapping EEZs with the Philippines or other claimants (Brunei, Malaysia, Taiwan, and Vietnam all have competing claims in the Spratlys). China’s southernmost island province, Hainan, is located more than 600 nautical miles away. But what about China’s artificially-made islands in the Spratlys?

Not only are they legally inadmissible (see Article 60 of UNCLOS), the tribunal ruled, but they are also “incompatible with the obligations” of member states, “inflict[ing] irreparable harm to the maritime environment” and “destroy[ing] evidence of natural condition of features” in the Spratlys. The verdict also made it clear that China “violated the Philippines sovereign rights” by preventing the Southeast Asian country from enjoying its sovereign rights—from fishing to offshore oil and gas development—within its EEZ.

At a Crossroads

The verdict carries significant strategic implications. First of all, it has set an encouraging precedent for fellow ASEAN countries such as Vietnam and Indonesia, which have previously threatened to take China to court over the South China Sea disputes. Even Japan is considering compulsory arbitration against China in the East China Sea.

The verdict made it very clear that China enjoys no sovereign rights to exploit the marine and energy resources within the EEZs of a number of its ASEAN members, not only the Philippines. Even if none of China’s neighbors actually pursue a legal warfare strategy, these countries are in a strong position to credibly threaten Beijing with simultaneous, multiple arbitration cases.

This will be a soft power coup, a huge setback for China’s claim to regional leadership. If China fails to comply with the verdict, Manila can also ask the International Seabed Authority, constituted under the UNCLOS, to suspend existing permits it has granted China to extract seabed resources in international waters. Manila also has the option of filing additional arbitration cases against China if the latter unilaterally exploits hydrocarbon and other natural resources within the Philippines’ EEZ.

Aside from a potential “legal multiplier,” major naval powers such as the United States, Japan, India, France, and Australia can invoke the arbitration verdict as a basis to conduct multilateral and sustained freedom of navigation operations close to China’s artificially-created islands, many of which are actually built on low-tide elevations.

This way, responsible naval powers could “enforce” at least certain dimensions of the verdict, pushing back against China’s excessive claims and assertive posturing in the high seas.

So far, however, it seems that China’s threats and military patrols in the area are taming the passions of its neighboring states as well as the United States. Practically all countries in the region, including the Philippines and the United States, have called for calm and self-restraint. Only Japan had the audacity to explicitly remind China that, “the tribunal’s award is final and legally binding…the parties to this case are required to comply.” ASEAN failed to come up with a joint statement in the wake of the verdict, even if its earlier statements, particularly at the Sunnylands Summit, reiterated the importance of rule-based resolution of the disputes in accordance to the UNCLOS.

Philippine President Duterte, meanwhile, has made it clear that it is opting for a “soft landing” with China, and interested in launching direct talks with the Xi Jinping administration. He has refused to taunt Beijing by flaunting the verdict, partly to avoid further escalation, but also in the interest of reviving bilateral investment ties, which have suffered in recent years.

For now, it seems, the Philippines’ strategy is to leverage the verdict as a bargaining chip in prospective bilateral talks. Months earlier, China first asked the Philippines to drop the arbitration case and now, reportedly, to set it aside in any prospective bilateral talks with its Southeast Asian neighbor. Since Beijing is clearly aware of how much the verdict means to Manila, which invested considerable diplomatic and political capital in its legal attack, most likely China’s hardline position is for domestic political consumption, given how the Communist Party took an unequivocal position that the verdict is “null and void.”

The Duterte administration has called for unconditional talks, adamant that the verdict should be a basis for any bilateral dialogue. Despite the tough rhetoric adopted by both sides, plans for bilateral talks are set to proceed with former President Fidel Ramos, who deftly managed the South China Sea disputes in the mid-1990s, tapped as a potential special envoy to restart high-level bilateral talks with China.

However, there is no assurance that China is willing to compromise without concerted international pressure, led by no less than the United States with the support of key regional players such as ASEAN.