July 13, 2016 12:50 am JST
Commentary

Bill Hayton -- What will follow China's legal defeat in South China Sea?

China has suffered a stunning legal defeat and the Philippines has won an equally stunning legal victory over maritime claims -- but out in the South China Sea, nothing has changed. China is still building up its new artificial islands and no country is giving up sovereignty over the disputed reefs and rocks. There is no sign yet of any physical response from the Beijing leadership to Tuesday's ruling by the Permanent Court of Arbitration in The Hague that some of China's claims in the South China Sea had no legal basis. But the USS Ronald Reagan aircraft carrier is very publicly steaming through the region just to make sure. It is, to say the least, a fragile situation. How long can it hold?

China's official response to the tribunal's decision -- known as an "award" -- had been loudly trailed for the past two months. Shortly after the news, the Chinese foreign ministry solemnly declared, that the award is "null and void and has no binding force. China neither accepts nor recognizes it." This was only to be expected. What is significant is that there was no ramping up in rhetoric; Beijing only repeated the standard boilerplate text that has been printed in dozens of op-eds and paid advertisements in newspapers around the globe. This seems, for now, to be the limit of China's response.

It is worth remembering that for China to comply with the substantive parts of the award, all it has to do is -- nothing. It does not have to dismantle any artificial islands or rescind any of its maps. All it has to do is not licence oil exploration or sanction fishing flotillas in the wrong places. No-one is expecting China to publicly abandon its claims to the features of the sea. The Philippines case was never about that, despite all Beijing's talk about sovereignty.

In fact, we have already seen changes in Beijing's behavior in the South China Sea. They began two years ago in the aftermath of its disastrous decision to drill for oil in waters off the Paracel Islands, also claimed by Vietnam. The public reverse that China suffered then and the subsequent impact on its regional diplomacy seems to have forced the upper echelons of the Communist Party into a rethink. Since then, there has been no oil exploration on the Vietnamese side of the notional "half-way" line between the two countries' coasts. Nor has there been any within the exclusive economic zones claimed by the Philippines, Malaysia or Indonesia.

It is true that Chinese fishing vessels have been much more assertive than before, but this situation may change. Several recent incidents have already provoked an angry reaction from Indonesia, which has moved to reinforce its military garrison in the Natuna Islands in response. Politicians in Jakarta have become increasingly direct in their criticisms of Chinese fishing practices. The tribunal's ruling, which bluntly states that China's "U-shaped line" has no validity in international law, should embolden Jakarta. Beijing will have to ask itself whether it wishes to provoke Southeast Asia's largest country still further, or rein in its fishing fleets in the wider interests of its regional relations.

Disputes and disputes

It is important to remember that there are two sets of disputes in the South China Sea. There are disputes over the reefs and rocks and there are disputes over the spaces in between the reefs and rocks. The tribunal's Tuesday decision only addresses the second set, it says nothing about the first. As a result, China, and the other claimants, can continue to believe in the strength of their sovereignty claims, regardless of the decision in The Hague.

Perhaps this gives us a clue toward China's escape route from this defeat. By publicly and repeatedly invoking "sovereignty" in its response to the Philippine case, Beijing has diverted attention away from the real issues under consideration -- the rights that countries enjoy in areas of sea between the reefs and rocks. The more China talks about sovereignty of these features, the more the rest of the region can relax. It would suggest that Beijing is preparing to live with the tribunal's award.

Next step for Southeast Asia

What should Southeast Asian countries do in response to the ruling? Perhaps the best course is for them also to do nothing. This may be difficult. One major motivation for the Philippine case was to find alternative supplies of energy. The Malampaya gas field, which provides the electricity for a third of the island of Luzon, including Manila, is running out. The country needs to replace it. One solution lies in the huge natural gas reserves under the Reed Bank, a large tablemount in the disputed sea, but a rapid attempt to drill there will almost surely provoke a Chinese response. Perhaps it would be better to seek a "win-win" solution: Leave the gas in the ground for the time being and encourage Chinese investment in, for example, solar power instead.

The U.S. also seems to support this. The U.S. State Department's Asia trouble-shooter, Kristie Kenney, was in Manila as the award was announced. The message she publicly offered to the new Philippine government was to avoid confrontation. In an interview with The Rappler news site she declared, "The goal here is a diplomatic solution to a very complicated problem. The goal is not to use violence, to be provocative ... To accept the ruling in a very peaceful way that opens the door for dialogue among the claimant states is, I think, the goal.

We are unlikely to see any trouble in the region before November. China is hosting the G-20 summit in Hangzhou on Sept. 4-5 and the East Asia Summit takes place in Laos immediately afterward. In November comes the U.S. elections. On past performance, China has tried to avoid becoming an issue in American campaigns. If the region can make it that far, perhaps the sting of this defeat will have eased for China and all sides can make a fresh start.

Bill Hayton is an associate fellow, Asia Program at Chatham House in London, a fellow of the Royal Geographical Society and author of "The South China Sea: the struggle for power in Asia."

Get Insights on Asia In Your Inbox

To read the full story, Subscribe or Log in

Get your first month for $0.99

Redeemable only through the Subscribe button below

Once subscribed, you can…

  • Read all stories with unlimited access (5 articles per month without subscription)
  • Use our smartphone and tablet apps

To read the full story, Subscribe or Log in

3 months for $9
SUBSCRIBE TODAY

Take advantage of this limited offer.
Subscribe now to get unlimited access to all articles.

To read the full story, Update your account

We could not renew your subscription.
You need to update your payment information.

To read the full story, Subscribe or Log in

Once subscribed, you can…

  • Read all stories with unlimited access (5 articles per month without subscription)
  • Use our smartphone and tablet apps

To read the full story, Subscribe or Log in

3 months for $9
SUBSCRIBE TODAY

Take advantage of this limited offer.
Subscribe now to get unlimited access to all articles.

To read the full story, Update your account

We could not renew your subscription.
You need to update your payment information.