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Several developments are converging for an interesting outcome. After deliberating on the matter since July, the Permanent Court of Arbitration operating under the UN auspices at the Hague accepted Manila’s plea and ruled that it has jurisdiction to decide the legality of China’s expansive and historically weak and unwarranted “nine dash-line” claims in the West Philippine Sea (aka, South China Sea) and, more importantly, to adjudicate on China’s sea territory dispute with the Philippines. The Court will now proceed to actually hear the case — a huge setback for Beijing. The Philippine arguments are based on the legality of the 1982 Convention on the UN Convention on the Law of the Seas (UNCLOS), and of its provisions affording states fronting on the seas the singular and exclusive rights to manage, explore and exploit the maritime resources within the Exclusive Economic Zone (EEZ) in the waters extending to 200 nautical miles from land, which are at variance with China’s so-called “indisputable” historical claims. Manila, cleverly, insisted it is not asking for the delimitation or delineation of the sea-territories under dispute; rather that it merely wants recognition of its UNCLOS-derived rights to the EEZ.
This approach eased the pressure on the Arbitrators, who were no doubt negatively impacted by Beijing’s decision to not even participate in the judicial proceedings and, hence, questioning its bonafides. The Chinese contention (in its 147-page deposition) was that the 2002 Declaration on the Conduct of the Parties in the South China Sea (or DOC) — a non-binding, non-aggression pact Beijing signed with the ASEAN, constitutes “an agreement to resolve disputes…exclusively through negotiation.” The Court struck this interpretation down, saying the DOC is only “a political agreement that was not intended to be legally binding and was therefore not relevant to the provisions” in UNCLOS that approves dispute resolution “through any means agreed between the Parties.” Beijing was quick to rubbish this ruling. Except, a verdict against China in this case would demolish the legal basis for its claims. The rub, however, is any ruling of the Arbitration Court is not enforceable, but it will strengthen the the legal and moral case of the Philippines and the other ASEAN states also in dispute, allowing them to apply political and diplomatic pressure on China and, more significantly, to legitimate external assistance they may seek to protect their rights.
The external assistance could be direct military help and, indirect, with major country navies asserting the freedom of peaceful navigation by frequently sailing warships, followed by merchantmen, through these contested sea ignoring the Chinese 12-mile zone restrictions off the several shoals in this area that China has cemented into artificial islands by dumping masses of sand and land-fill. Not coincidentally, the first challenge to China’s notion of maritime sovereignty was conducted by the American missile destroyer USS Lassen sailing into the area around the time Hague was pronouncing its preliminary verdict. This was in the face of the Chinese naval chief Admiral Wu Shengli’s warnings of risk of conflict. But the US Secretary of Defense Ashton Carter had already indicated that America will “fly, sail, and operate whenever international law allows, as we do around the world, and the South China Sea is not and will not be an exception.” As if to reinforce the US position, he will very soon be swinging by Kuala Lumpur, there to liaise with the ASEAN members and, perhaps, to firm up a cooperative strategy based on the Hague case. The important thing to note is that Beijing did nothing against Lassen, and will be hard pushed to react harshly against ships from other countries either, to prevent the ganging up of all the littoral and far-off navies, thereby sinking what slight possibility there still is for Beijing to prosecute its longstanding strategy of refusing to deal with ASEAN but to cut separate deals with the regional states on a bilateral basis in order to get better terms.
Delhi should learn how to deal with China, to take note of small and weak Asian countries on China’s periphery standing up to Beijing even as India pussyfoots around issues, fearful of adverse Chinese reaction.
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