November 11, 2015, by Editor
China’s three-pronged response to the Permanent Court of Arbitration’s rule on jurisdiction
Written by Alex Calvo.
On 29 October the Court of Permanent Arbitration (PCA) ruled that it had jurisdiction on the arbitration case launched by the Philippines against China, concerning the South China Sea. It unanimously decided that it had jurisdiction concerning seven of the fifteen claims put forward by Manila, with a further seven to be decided simultaneously with its ruling on the case itself. This follows Beijing’s refusal to join the proceedings, despite issuing a position paper, and prompts the question of how the PRC will react. While still too early to tell for sure, the first moves by the PRC seem to indicate a three-pronged strategy, whereby Beijing insists in denying the court’s jurisdiction, moves forward in the deployment of aircraft in artificial islands, and explores agreements with some of the claimants. The two first pillars are in line with previous practice, while the second has some precedents, such as the 2000 partial delimitation and fisheries agreement with Vietnam in the Gulf of Tonkin, but may prompt a very different scenario from the one we have seen in the last few years, when Chinese claims have been opposed by other states in the region, the latter careful however not to give any impression they were setting up an informal coalition. Let us thus have a look at these three aspects of China’s initial response to the PCA’s ruling.
Beijing insists the case is outside UNCLOS compulsory arbitration. After the PCA released its ruling on jurisdiction and admissibility, the PRC’s Foreign Affairs Ministry insisted on its refusal to recognise the court and take part in the proceedings. The following day it published a statement saying that the ruling was “null and void, and has no binding effect on China” and that “With regard to territorial sovereignty and maritime rights and interests, China will not accept any solution imposed on it or any unilateral resort to a third-party dispute settlement”. Beijing did not mince its words, calling the case a “political provocation under the cloak of law” and stressing that its position, explained in the PRC’s 7 December 2014 position paper, was “clear and explicit, and will not change”. China insisted on the view that by signing the Declaration on the Conduct of Parties in the South China Sea (DOC), Manila had agreed to exclusively resort to “negotiations and consultations”, and warned that the case would damage “the integrity and authority of the UNCLOS”.
None of this comes as a surprise, given China’s extreme reluctance to seeing a third party, including an arbitration tribunal, rule on any aspect related to the extent of its territory. While Beijing is not alone in such distrust, Chinese views of international law as being the product of the same Western powers plus Russia which encroached on the country’s territory and subjected it to a semi-colonial status remain prevalent. Furthermore, while Beijing has been working to increase her presence in international financial institutions and even come up with its own multinational development bank in the shape of the AIIB, progress on the international legal arena, and in particular the law of the sea, has been much more limited. It is of course true that not a few countries share at least some of China’s views on the rights of coastal states in their EEZs, but others resist them, as clear from the recent FONOP (freedom of navigation operation) in the South China Sea by USS Lassen. Beijing could try to build an informal coalition of coastal states to push for a more expansive interpretation of such views, but some of these same countries are worried by China’s readiness to use force to advance her claims, and this militates against any such agreement. Furthermore, it is still not clear whether all China wants in the South China Sea is an EEZ around the features she controls, subject to extensive coastal state rights, or whether Beijing has in mind a status for its waters currently not to be found in customary international law or UNCLOS.
Lesson from the Falklands: more aircraft deployed. In 1982 both Argentine and British forces suffered from their lack of advanced jets able to take off close to the battlefield. Buenos Aires, faced with the limited length of Port Stanley’s runway, was forced to operate its most powerful warplanes (above all the Exocet-carrying Mirage) from bases on the Argentine mainland, spending time and fuel getting to their hunting grounds, with little margin left to search for targets. To a large extent, this negated her geographical advantage. London, lacking any nearby land bases, had to resort to Harrier warplanes operating from two light carriers, both ships forced to sail far from the Falklands to keep from harm’s way. It was not until a beachhead had been secured and improvised landing strips constructed that the situation improved for the British expeditionary force, and even then it was not possible to secure complete air superiority, with Port Stanley’s airport still open. The need to be able to operate jets as close as possible to a disputed area was one of the lessons from the 1982 Falklands War, and one Asian powers facing another possible island war took careful notice of.
This may be one of the motivations driving China’s policy of reclamation in the South China Sea. In connection to this, pictures released on 31 October show that China has deployed PLANAF J-11BH/BHS fighters to Woody Island (also known as Yongxing Dao in Chinese and Dao Phu Lam in Vietnamese), located in the Paracels. This means that, compared with Hainan Island, they are closer to the artificial islands built by Beijing in the Spratly Archipelago. The deployment in Woody Island has been made possible by the significant reclamation work conducted by Beijing, resulting in a much larger surface and a new, longer, runway.
Some observers believe that the setting up of airfields in the South China Sea is meant to allow Beijing to declare an ADIZ (Air Defense Identification Zone), with the Philippines’ Defense Secretary Voltaire Gazmin going as far as warning about China already operating an informal ADIZ.
Divide et Impera?. The Latin expression “divide et impera”, usually translated as “divide and rule” or “divide and conquer” is often seen as one of the maxims of statecraft. In Federalist paper number seven, Alexander Hamilton wrote “Divide et impera must be the motto of every nation that either hates or fears us”. However, to date Beijing has found it difficult to secure some sort of accommodation with a portion of the South China Sea coastal states and other interested regional parties. On the other hand, all these countries have sought not to directly confront Beijing, and above all give the impression they were building a coalition against China. Yet, despite this lack of coordinated opposition, China has not managed to completely divide her neighbours. Could the PRC take a more pragmatic approach in the wake of the PAC ruling, and seek to isolate the Philippines by striking a deal with some other actors? Actually it would not be the first time that Beijing tried to follow this route. For example in 2013 China and Brunei announced some initiatives to expand their energy and maritime cooperation. Beijing may seek to build on this, and perhaps follow a similar approach with some other littoral state. In doing so, China may pursue two goals: cementing the splits within ASEAN so that the regional grouping cannot be an effective counterpart to the PRC, and limiting the reputational damage from the refusal to take part in the PAC proceedings, showing the world that China is after all a reasonable partner able to work with her neighbours, as she often did in the 1990s. Perhaps this could go hand in hand with a more pragmatic approach to UNCLOS, China acting more in line with its contents while not formally renouncing her claims. Commenting on the PAC ruling, Lynn Kuok (Brookings Institution) said that “As China grows in strength as a maritime power, Beijing might realize that the country’s interests are best protected by upholding rather than undermining the convention”.
Conclusions. China has reacted to the PAC’s ruling by sticking to her refusal to take part in the proceedings, while deploying PLANAF J-11BH/BHS fighters to Woody Island. However, Beijing may seek to complement her refusal to recognize international arbitration and the building of airstrips across the South China Sea (likely to result in an ADIZ) with a renewed push to split littoral states. Should Beijing succeed in this enterprise, she may limit the reputational damage from her contempt for UNCLOS and the PAC, while preventing ASEAN from effectively coordinating to oppose Chinese expansion.
Alex Calvo, a guest professor at Nagoya University (Japan), focuses on security and defence policy, international law, and military history, in the Indian-Pacific Ocean Region. A member of Taiwan’s South China Sea Think-Tank and CIMSEC (The Center for International Maritime Security), his previous work on the South China Sea includes “China, the Philippines, Vietnam, and International Arbitration in the South China Sea”, The Asia Pacific Journal: Japan Focus, Volume 13, Issue 42, No. 2, 26 October 2015, available at http://japanfocus.org/-Alex-Calvo/4391/article.pdf He tweets at Alex__Calvo and his work can be found at https://nagoya-u.academia.edu/AlexCalvo
Image credit: CC by Victoria Reay/Flickr.
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