China's Challenge in the South China Sea

by Daniel Wagner and Edsel Tupaz Daniel Wagner is CEO of Country Risk Solutions and author of the book "Managing Country Risk".

Edsel Tupaz teaches comparative law in Manila. He is a graduate of Harvard Law School and Ateneo de Manila.

As a rising global power, and being the largest and most important economy and military power in Asia, China has had the luxury of being able to do more or less whatever it wants in challenging its neighbors over disputed land and sea claims -- knowing that in all likelihood, it would not be challenged. That has changed in recent years, with Japan vigorously contesting China's claim over the Senkaku Islands and the Philippines taking its claim over the Spratly Islands to international arbitration. China announced over the weekend it had no intention of participating in arbitration over the issue with the Philippines.

Daniel Wagner

The Philippines' attempt to haul China to an international tribunal is a problem because it is invoking the very compulsory jurisdiction which China has disavowed since 2006. But even if the Philippine attempt to arbitrate fails, any marshaled argument can subsist, and that case may be fielded in other venues. If a military engagement were to ensue, the same case could be brought to the United Nations Security Council -- the principal repository of enforcement powers under the UN system. A state can be found to be in violation of a substantive legal norm even without a coercive or compulsory judgment in a given venue, provided, of course, that there is truth to the argument supporting a violation, and that it is acknowledged by an alternative venue.

While China is disavowing the UN Convention of the Law of the Sea (UNCLOS) against the Philippines, it is expressly invoking UNCLOS provisions in its claims against Japan -- so it wants to have its cake and eat it, too. In 2009, China submitted a claim over the Senkaku Islands (which, like Scarborough Shoal and the Spratlys, are believed to be fuel rich) and turned to UNCLOS rules in defining and delineating its continental shelf beyond the 200 nautical mile exclusive economic zone, again within the meaning of UNCLOS. There is some international legal doctrine supporting the view that a state's acts in one place can be used as an admission and adversely bind that State in another set of circumstances.

Edsel Tupaz

The larger point is that China has not personified the Rule of Law in this case, or in others related to maritime borders, and wants to be able to 'cherry pick' which provisions of international treaties it will willingly comply with, and which it will not. That is behavior unbecoming of a rising global power and will make states which are signatories to treaties with China wonder if its signature is worth the paper it is printed on, and cannot be in China's long-term interest. China's insistence in relying on centuries' old maps that are clearly not consistent with current maritime law as the basis for its maritime claims in the South China Sea is also likely to prove contrary to its interest.

Whether or not the Philippine arbitration claim prevails in court, China is unlikely to prevail in the court of international public opinion on this issue. Maritime disputes in the South China Sea and West Philippine Sea will ultimately be a litmus test for whether China will act as a responsible member of the international community, willing to engage other contestants in a rules-based regime in accordance with established norms of international diplomacy, consistent with a nation of its importance and stature. That is China's challenge.

Daniel Wagner is CEO of Country Risk Solutions and author of "Managing Country Risk". For Country Risk Solutions, please click here.

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