Commentary | 16 July 2016

Ruling says no state is an island

Originally published in The Australian Financial Review.

  • Euan Graham

Originally published in The Australian Financial Review.

  • Euan Graham

Executive Summary

The Spratly Islands are henceforth no longer islands, but demoted to lowly rocks and low-tide features. That is one of the far-reaching implications from this week's portentous ruling by the Permanent Court of Arbitration (PCA) tribunal, on the dispute brought by the Philippines against China in the South China Sea.

No judgment was made about sovereignty, but all five judges comprehensively found China's South China Sea claims to be excessive. A coach and horses has been driven through Beijing (and Taipei's) Nine Dash Line map as a basis for jurisdiction. China's claim to historic rights across most of the South China Sea has been found to have no legal foundation, while the land-based exclusive economic zones (EEZs) of the Philippines, Vietnam, Indonesia and Malaysia have all been significantly buttressed.

After decades of shrinkage, under the pressure of ever-expanding maritime claims, the ebb tide for the "high seas" has finally turned as a result of a decision out of the Netherlands.

Hugo Grotius, the 17th century Dutch jurist and originator of the high seas concept, would be tickled orange.

The Hague Tribunal will be remembered for raising the legal bar of what constitutes an island, to features that can naturally sustain "a stable community of people". That finding, intended to inject clarity into the UN Law of the Sea Convention (UNCLOS), creates an important precedent. Japan and even the United States could find the question asked of them, including by China, in relation to their more questionable claims in the Pacific. When that challenge comes, it should be graciously accepted as a necessary price to support the Philippines' plucky contribution to the international rules-based order.

Enough euphoria. By now, the "so-what" question will be ringing in your ears: Isn't the PCA ruling an empty provocation to China, without enforceability?

After all, China's response was literally set in concrete soon after Manila lodged its legal complaint in January 2013. The Hague judges have blasted China's construction of seven artificial islands in the Spratlys as a both a violation of the Philippines' sovereign rights and an aggravation of the dispute. But Beijing's point was primarily about power: a declaration that come judgment day China would be irreversibly present, asserting its "historical rights" up-close and in person.

As the focus turns from the legal to the political, the challenges involved in shifting China's position into conformity with international law are openly apparent. Beijing's anger was inevitable. The response from the new Philippines administration has been helpfully restrained, avoiding unnecessary humiliation of China, while keeping the door ajar to negotiations. ASEAN, however, remains splintered, unable to issue a specially drafted post-ruling statement because of Chinese pressure upon its smaller, newer members. Indonesia's response has been equivocal at best.

More surprisingly, China's efforts to drive wedges into the international community appear to have borne fruit within the EU, with Greece and newer accession states reported to be blocking a joint statement in support of the arbitration result.

Yet Beijing appears wrong-footed by the sweeping nature of the judgment, as if the initiative has been wrested from it. Splintering the international community is a tactic, but not a strategy capable of bearing fruit for long.

It is early days, but subtle shifts in China's position have already been detected in post-ruling statements, suggesting Beijing could be re-configuring its position, distancing historic rights claims from their previous association with the now-discredited Nine Dash Line.

Since the Hague Tribunal does not adjudicate on sovereignty, China can continue its claims to high-water features regardless, although there is a clear implication from the ruling that China is unlawfully occupying the low-tide elevation at Mischief Reef, within the Philippines' EEZ.

While China should be allowed some time to develop a response to the ruling beyond anger, denial and further militarisation, the real wild card in Beijing's unfolding reaction is the effect of the ruling on domestic sentiment. The regime is on watch for any hint that the South China Sea ruling is attracting nationalist criticism, given its obvious potential to turn inward and upward. As many have discovered before him, Xi Jinping is finding out that wrapping oneself in the flag is one thing. Furling it is trickier.

 

Euan Graham is director of the international security program at the Lowy Institute.