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A nation must think before it acts.
Prediction is difficult—especially about the future. Niels Bohr’s words ring true when it comes to the case brought by the Philippines against the People’s Republic of China over their differences in the South China Sea. It is with caution, then, that this analysis forecasts the minimum findings likely to be reached by the Permanent Court of Arbitration (PCA) in its decision on the merits in this case under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). The PCA decision in the jurisdictional phase of the proceedings, delivered last year, was refreshing in its straightforward legal simplicity. This approach suggests that in the merits phase of the case the court will once again ignore political and strategic factors and apply legal doctrine to the facts in the case. Thus, the legal decision will be reached in a vacuum devoid of the usual elements that make the issues in the South China Sea so vexing—the disparity of power between the Philippines and China, the hope of integrating China into a liberal order, and China’s intractable persistence in harnessing economic and political power to change the strategic balance in its favor.
China’s maritime claims are so audacious and disconnected from long-standing norms of customary international law and the text of UNCLOS that we should expect the PCA to deliver a “death blow” to Beijing’s efforts to create legal ambiguity and upend existing law. The arbitration decision will be legally binding on the Philippines and China and will provide guideposts for other states in the region. Since both states are members of UNCLOS, each has a duty to comply with the ruling under Part XV concerning mandatory dispute resolution. Other states will use the decision to assess the strengths of their own claims and to challenge opposing claims, especially China’s. The unanimous decision on award of jurisdiction by the tribunal suggests that the members will strive for agreement on the merits. While this process tends to reduce decisions to the lowest common denominator, it also strengthens the rule of law by avoiding split decisions that could generate controversy and dilute the authority of the court’s opinion. And while the case will be resolved over legal technicalities, it will produce strategic ramifications. A loss by China would further isolate it diplomatically and embolden other states to stand up to Beijing.
The PCA has agreed to address at least seven issues, mostly concerning the entitlements to specific features in the South China Sea—Mischief Reef, Second Thomas Shoal, Subi Reef, Gaven Reef, Hughes Reef (occupied by China and sometimes also mistaken for McKennan Reef), Johnson South Reef, Cuarteron Reef, and Fiery Cross Reef—as well as certain Chinese activities in the Philippine exclusive economic zone (EEZ). The PCA will follow the text of UNCLOS and prevailing international jurisprudence and likely limit drastically the maritime entitlements generated by these features.
Any insular feature that remains above water at high tide is subject to appropriation or territorial title, and therefore may…
Continue Reading “Forecasting the South China Sea Arbitration Merits Award”