Benjamin Lai is an expert on modern Chinese military and the author of The Dragon’s Teeth. Here, he explains why the South China Sea dispute is a potential catalyst for another war…
On July 12th 2016, The Permanent Court of Arbitration (PCA) made a landmark decision against China’s “nine-dash” line territorial claim over the South China Seas (SCS) on the basis of the UN Convention on the Law of the Sea (UNCLOS). The tribunal also ruled that China had infringed on 200-nautical-mile exclusive economic zone (EEZ) of the Philippines. To defend her claims, the Chinese deployed Surface to Air Missiles and then held numerous naval drills until 16th September. This was a joint event with the Russian Navy, and therefore a strong message against more US led “Freedom of Navigation patrols” in the South China Seas.
Whilst some of the media have criticized China’s action as belligerent, Professor Nordquist of the University of Virginia sided with China and opined that the PCA ruling was a “huge mistake” and should be “criticized severely”. So who is right and who is wrong?
Firstly, there is a common misconception that the PCA is part of the UN or the International Court of Justice (ICJ). In a statement, UN spokesman Stéphane Dujarric denied that the PCA was a part of the UN and added: “The UN doesn’t have a position on the legal and procedural merits of the South China Sea case.” The ICJ too posted on their website a reminder that the PCA did not belong to them. The PCA is only an arbitration tribunal and her ruling is only valid if both parties agree so surely if China disagree to it, then it is not a fair ruling, especially as China cited article 298 (1a) that UNCLOS cannot be used in regard to territorial rights.
In the 19th century, the French certainly acknowledged that the SCS islands were Chinese; the “1885 Sino-Franco Convention” confirms this. In 1930 France occupied the Spratly Islands because China was mired in civil war and was in no position to contest. In 1933, the Philippines tried to annex the Spratly, but then US Secretary of State Cordell Hull rebuked, saying that neither the Spanish nor the Americans recognized the Spratly islands as belonging to Philippines. During WWII the Spratly Islands were occupied by Japan, until their defeat when they were handed back to China as demanded by the terms of surrender. Despite these facts, the PCA “ruled” that part of the Spratly Islands lay in the Exclusive Economic Zone of the Philippines and thus nullified a key part of a treaty that underpin the ending of WWII. This ruling by the PCA cannot resolve the current dispute and they are arguably just stirring up a reason for America and her allies to intervene. This PCA legal challenge was a PR coup for the Americans who not only mastermind the whole strategy but also supplied an all American legal dream team which cost the Philippines $30 million.
A key driver behind the PCA legal suit was the Philippines Secretary of Foreign Affairs Albert del Rosario. Whilst acting as Secretary, Rosario remained a shareholder and director of Philex Petroleum, a company with a strong interest in the exploration of the South China Sea. Knowing that drilling in contested water was going to be trouble, Philippines’ Department of Energy deferred the right to issue a drilling license to Rosario’s Ministry of Foreign-Affairs. To strengthen the case for Philippines, Rosario dragged in Japan as well as the USA to shore up Philippines’ claim by signing the Enhanced Defense Cooperation Agreement (EDCA) in 2014. The EDCA paved the way for a new permanent American and Japanese military presence in the SCS through the right to access selected Philippines military bases situated there.
When the Filipino President Benigno Aquino’s term ended, his preferred successor Mar Roxas was defeated in an election by Rodrigo Duterte. Whilst Roxas is also a shareholder and director for Philex, Duterte is anti-American and even friendly to China, thus complicating the dispute.
Next January there will be a new US president. If Hillary wins, my guess is that she will only ratchet up the tension over the South China Sea issue and apply pressure to China, for she was a well-known exponent of this tactic while Secretary of State. But if we have President Trump, how he will really act remains to be seen. What is sure is that the South China Sea dispute is far from over.
For more about the South China Sea dispute, check out Benjamin Lai’s latest book, The Dragon’s Teeth: The Chinese People’s Liberation Army—Its History, Traditions, and Air Sea and Land Capability in the 21st Century
Published by Casemate Books, The Dragon’s Teeth is available from: http://www.casematepublishing.co.uk/index.php/the-dragon-039-s-teeth.html
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