Source: China Leadership Monitor
The Philippines v. China arbitration case and the furor over its verdict constitute a significant development that could influence the prospects for future rivalry or cooperation in the Western Pacific. This article closely examines the viewpoints of Chinese leaders and knowledgeable observers on the arbitration case. Authoritative sources consistently indicate that China rejects the arbitration and views its verdict as detrimental to vital Chinese interests, regional stability, and international legal order. Nonauthoritative sources, while reaffirming the authoritative viewpoint, believe that China enjoys some type of privileged right to exploit resources throughout the area contained within the “nine-dashed line.” China’s categorical rejection speaks to the fundamental Sino-Western division over the application of international agreements to sovereignty issues and indicates that any effort by the US or other powers to pressure Beijing will prove futile and most likely exacerbate existing tensions in the South China Sea. All authoritative sources, however, emphasize China’s commitment to peaceful bilateral negotiations to settle disputes in the South China Sea, and imply that China’s response to the verdict will depend on how other powers respond to it. This might suggest that other powers could play a major role in minimizing the damage from the arbitration and establishing a more stable modus vivendi in the South China Sea going forward.
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On January 23, 2013, the Philippine government (hereafter referred to as Manila) announced that it had initiated an arbitration case against the People’s Republic of China (PRC) in accordance with the dispute settlement provisions of the United Nations Convention on the Law of the Sea (UNCLOS) concerning a range of issues relevant to the ongoing sovereignty dispute in the South China Sea (SCS) between the two nations.Manila’s case was submitted for arbitration to a five-judge panel formed under the “Settlement of Disputes” process contained in Part XV of UNCLOS and hosted by the Permanent Court of Arbitration (PCA) in The Hague.1
Manila’s submissions to the PCA-hosted UNCLOS arbitral tribunal covered 15 specific points for arbitration.2 In sum, Manila requested that the tribunal: rule on the compatibility with UNCLOS of various aspects of Chinese and Filipino maritime entitlements or designations in the SCS, such as Beijing’s nine-dashed line (hereafter referred to as the 9DL); designate the geographic characteristics of specific features in the SCS and their maritime entitlements as based upon UNCLOS; and rule on whether Beijing has committed several specific violations of UNCLOS provisions regarding, for example, the management of marine resources, the activities of Filipino fishermen, and the construction of artificial islands.3
In no instance did Manila explicitly ask for the tribunal to rule on whether China, the Philippines, or some other state holds or should hold sovereignty over any of the geological features or maritime zones of the South China Sea. Indeed, UNCLOS has no authority to make such judgments. Its purpose is to provide a legal order identifying the characteristics of the marine environment and the rights and responsibilities of nations regarding the use of that environment.
On October 29, 2015, the arbitral tribunal ruled that it holds jurisdiction regarding the case, addressing seven of the 15 submissions made by the Philippines, and reserving its judgment on the remaining eight submissions for the time of its final ruling. The final ruling occurred on July 12, 2016, when the PCA published the tribunal’s arbitration award. By and large, on most points, the tribunal ruled in favor of the Philippines and against China.4
From the inception of this case, Beijing has entirely refused to participate in the arbitration process and has completely rejected the decisions of the PCA-administered tribunal, regarding that entity as illegitimate and illegal and its judgments as null and void and inapplicable to China (see below). In support of this categorical stance, Beijing has issued several authoritative documents and made several authoritative statements explaining the legal, historical, procedural, and other aspects of its position and the implications of the ruling.5
In addition, a variety of non-authoritative Chinese observers have also provided their assessment of the meaning and relevance of the arbitration case. And of course many non-Chinese observers, authoritative and otherwise, have also weighed in on the issue.
Coming at a time of arguably growing tensions between Washington and Beijing and Beijing and other Asia powers over maritime disputes in the South and East China Seas,6 the furor over the Philippine arbitration case constitutes a significant development that could influence the prospects for future rivalry or cooperation in the western Pacific. In assessing such implications for the future, this paper examines more closely the viewpoint of Chinese leaders and knowledgeable observers on the arbitration case.
As in past issues of the Monitor, this essay divides Chinese sources into authoritative and non-authoritative categories. However, unlike in past issues, it dispenses with the category of “quasi-authoritative” sources, which in the past was used to describe articles written under the pseudonymous byline “Zhong Sheng.” This is because, according to the author’s recent interviews with experts, while these articles are likely produced by a small group of writers at People’s Daily and thus probably more “important” than articles written by ordinary Chinese academics, they are not even partly authoritative as expressions of PRC policy. At best, they form a higher, more prominent subset of nonauthoritative sources.
The first section of the remainder of this article summarizes the authoritative Chinese viewpoint on the arbitration submission and the judgment of the tribunal. The second section presents the non-authoritative sources, identifying a wider range of viewpoints that are largely repetitive of the authoritative position in most cases but nonetheless include some interesting variations. Finally, the conclusion offers some thoughts on the larger implications of the findings for the management of maritime disputes involving China, for U.S.-China security relations, and for Asian stability going forward...
This article was originally published by the China Leadership Monitor.
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Notes
1 The PCA is an independent intergovernmental organization that serves as an administrative and support vehicle for the operation of independent tribunals formed “to facilitate arbitration and other forms of dispute resolution between states.” As of August 2016, the PCA had administered 12 cases initiated by nations under the arbitration provisions of Annex VII to the UNCLOS. Both the Philippines and China are signatories to UNCLOS, having ratified it in 1984 and 2006, respectively. PCA, “About Us,” https://pca-cpa.org/en/about/; PCA, “Press Release: the South China Sea Arbitration,” July 12, 2016, https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Press-Release-No-11-English.pdf.
2 “Press Release: the South China Sea Arbitration.”
3 “Press Release: the South China Sea Arbitration”; Ministry of Foreign Affairs of the People’s Republic of China (hereinafter shortened to PRC Ministry of Foreign Affairs), “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines,” December 7, 2014, http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml.
4 “Press Release: the South China Sea Arbitration”; Mira Rapp-Hooper, “Parting the South China Sea: How to Uphold the Rule of Law,” Foreign Affairs, vol. 95, no. 5 (September/October 2016).
5 All publications cited in this note were issued by the PRC Ministry of Foreign Affairs: “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines” (see previous endnote); “Statement of the Government of the People’s Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea (excerpts)” December 12, 2016, http://news.xinhuanet.com/english/2016-07/12/c_135507754.htm; “Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines,” July 12, 2016, http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1379492.shtml; “Full Text: China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea,” July 13, 2016, http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1380615.shtml.
6See Michael D. Swaine, “Chinese Views and Commentary on Periphery Diplomacy,” China Leadership Monitor, no. 44 (Summer 2014), http://www.hoover.org/research/chinese-views-and-commentary-periphery-diplomacy;Michael D. Swaine, “Chinese Views and Commentary on the East China Sea Air Defense Identification Zone,” China Leadership Monitor, no. 43 (Spring 2014), http://www.hoover.org/research/chinese-views-and-commentary-east-china-sea-airdefense-identification-zone; Michael D. Swaine, “Chinese Views Regarding the Senkaku/Diaoyu Islands Dispute,” China Leadership Monitor, no. 41 (Spring 2013), http://www.hoover.org/research/chinese-views-regarding-senkakudiaoyu-islands-dispute.
7 “Full Text: China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea.”
