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Have An Island Dispute With China? Lawyer Up

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China Power

Have An Island Dispute With China? Lawyer Up

For a nation with little hope of winning a naval standoff, international law is a plausible alternative.

For many politicians, territorial disputes are a chance to flex military muscles and look tough.  But with the Philippines’ latest move on the South China Sea – taking China to an international arbitration panel over its maritime claims – the smaller nation has been pretty frank about its position of weakness.

Filipino Solicitor General Francis Jardeleza said as much at an NYU law school event last week, at which he discussed the decision to try international law: “When you don’t have political, or economic, or military leverage, where else can you turn?”

The Philippines case has made progress in the last week toward reaching a legal verdict, with the selection of the last three of the five arbitrators.  China is still refusing to participate, claiming that the arbitration panel does not have jurisdiction over the dispute, as it explained in great detail during a recent press conference.

Even without Chinese participation, the Philippines will be able to get its ruling – the procedures of the arbitration panel allow it to appoint a lawyer to make China’s arguments for it.

China’s South China Sea neighbors have indeed had little luck with tit-for-tat military responses over their territorial disputes: after a few years of heightened tensions, the range of China’s effective control has spread.  Last year, for instance, the PLA Navy took control of the Scarborough Shoal, an area that was previously patrolled by the navy of the Philippines and used by fishermen from both countries.  This week, China has begun running tourist trips to the Paracel Islands, mocking Vietnam’s claim to them.  Meanwhile, Japan has had to scramble fighters again and again in response to repeated Chinese incursions into the Japanese-controlled Diaoyu/Senkaku area.  Even India has faced an extended incursion in recent weeks, according to local officials.  Does a legal approach have more potential to deter China?

As described by Jardeleza, the Philippines’ legal strategy required it to make a significant concession – rather than claiming sovereignty over the Scarborough Shoal and Spratly Islands, it is seeking to minimize the cost of losing them by establishing that they are rocks or “elevations” rather than islands. The reason why the Philippines had to make this concession if it wanted to use arbitration is because China has opted out of the UNCLOS’ arbitration mechanism for disputes regarding overlapping Economic Exclusive Zone (EEZ). It has not opted out of the compulsory arbitration mechanism for disputes concerning whether a parcel of land constitutes an island or a lesser category such as a rock. This is important because under the UN Convention on the Law of the Sea, only islands qualify for a 200-mile EEZ.

Jardeleza said that the Scarborough Shoal standoff, in combination with China’s administrative moves turning the islands into Sansha City, shocked the Philippines into its change of strategy – convincing it that it only stood to lose more on the previous track.

Equally importantly, the Philippines seeks to have the court reject China’s expansive “9-dashed-line” claim, which includes almost all the waters of the South China Sea.

The Philippines still claims sovereignty over the Spratlys and Scarborough Shoal but it is unlikely to find a way of vindicating this: the tribunal is barred from arbitrating claims about land.  The International Court of Justice could hear these claims – going to the ICJ is voluntary, while China has signed UNCLOS, which includes a mandatory arbitration provision.

At this point, there seem to be two major obstacles before the Philippines: legally, it might lose the case, most likely on the question of jurisdiction.  As far as I can tell as a non-lawyer, experts in the U.S. feel that this is the only part of the case where China has a strong claim – and under the arbitration system it could win this point without ever appearing to make the argument.

The larger obstacle is the practical one: if China can defy a treaty commitment to come to court, what’s to stop it from defying the court’s judgment?  Jardeleza was pressed on this point in New York and responded by saying that the Philippines is seeking a “legal victory” but “obviously, there’s no one to enforce it, and the Philippines is hoping that a well-reasoned arbitral award will do something to persuade China.”

Phrased that way, it seems like a long shot.  But China is clearly not indifferent to the proceedings.  Conscious of its soft power, it has good reason not to be seen as an international pariah – at least more reason than it has to fear the naval might of its rivals.  While it might not be willing to submit to arbitration on sovereignty, the chance of having its islands declared as rocks might give China the opportunity of ending the standoff while saving face, since it would not be compromising on sovereignty issues per se.

For a country with little hope of winning a naval standoff, international law is a plausible alternative.  If China keeps trying to overawe neighbors like Vietnam and Japan with sheer strength, might it find itself facing an army of lawyers?