Yesterday, China’s foreign ministry released a position paper related to its maritime dispute with the Philippines in the South China Sea. The paper laid out the justification for China’s refusal to take part in the arbitration proceedings that the Philippines initiated at the Permanent Court of Arbitration in January 2013. It comes a week before the court’s six-month deadline for a response from China. While China’s refusal to participate should surprise no one, the paper detailed three broad reasons why it chose not to:
China claimed that the “subject-matter” that the Philippines submitted for arbitration is beyond the scope of the United Nations Convention on the Law of the Sea and, thus, the jurisdiction of the Permanent Court of Arbitration. In short, China argued that the court can hardly arbitrate China’s claims, when the extent of China’s territorial sovereignty in the South China Sea has not yet been determined. (Ironically, in bringing the “subject-matter” to court, the Philippines hoped to compel China into explaining the basis for its claims under the Convention—something that it has been reluctant to do.)
China claimed that the Philippines had violated its earlier agreements with Beijing as well as the Conduct of Parties in the South China Sea (the oft-mentioned “code of conduct”), when it unilaterally initiated the arbitration proceedings. China argued that in those agreements the Philippines pledged itself to resolve the maritime disputes through negotiation, a process that involves consent, which China clearly did not give.
China claimed that, in any case, it was not bound by any arbitration related to the Convention. It reminded observers that in 2006 China filed a declaration with the United Nations in which it exempted itself from compulsory arbitration and other dispute settlement procedures.
Beijing’s position paper also appeared to lay the groundwork for a rejection of any judgment that the Permanent Court of Arbitration might render. Certainly, over the course of the last year, China has been entrenching (literally) its position on the Spratly Islands in the South China Sea through land reclamation. It has been building up a number of islands, including Johnson South Reef, Hughes Reef, Cuateron Reef, and Gaven Reefs. On Fiery Cross Reef, it has expanded what was once a tiny atoll into one capable of supporting an airstrip and a small harbor. Even when Manila brought its case to the Permanent Court of Arbitration, it had to know that it was unlikely to change China’s behavior.
So, what did the Philippines achieve? First, it forced China to further delineate its views on the South China Sea, a feat that years of Southeast Asian prodding had failed to do. Second, it helped to change the tenor of the maritime dispute in the region. By forcing China to put its claims into sharper relief, the Philippines helped to show its fellow Southeast Asian claimants just how little room they have to negotiate with China. Even Malaysia and Indonesia, which had been the most reticent about confronting China, have become firmer in asserting their own claims. Finally, and most tangibly, the Philippines gained greater cooperation with other ASEAN countries, most notably Vietnam. In November, Vietnam’s two Gepard-class guided-missile frigates, the newest and largest ships in the Vietnamese navy, visited Manila for the first time. Though Southeast Asia is still far from taking a unified stand, the visit was a signal that the Philippines may not stand alone.
It is remarkable what the Philippines has achieved diplomatically, given the limited resources at its disposal and the disproportionate power of China. But diplomacy alone cannot change the facts on the ground. China knows that. As an op-ed from China’s Xinhua’s news agency, released alongside Beijing’s position paper, cautioned: “it is advisable that the Philippines return as soon as possible to the right track of negotiation to settle the disputes.” The “right track” apparently means acceptance of China’s preference for bilateral negotiations. But the editorial went onto state that China “will not give up an inch of its land.” That suggests that the best the Philippines (or any of the South China Sea claimants) can hope for is cooperation with China “to manage resources and protect free navigation in the South China Sea.” That is hardly an enticement to the Philippines to negotiate.