Beijing’s imperial ambitions run aground on legal reefs

JONATHAN MANTHORPE: International Affairs
July 16, 2016

The ruling this week by the Permanent Court of Arbitration, that China’s claim to sovereignty over about 90 per cent of the South China Sea is invalid and unlawful, will have profound effects on the tenor and timbre of the growing power struggle in Asia.

The 497-page decision by the five judges under the authority of the United Nations Convention on the Law of the Sea (UNCLOS) is a sharp and humiliating rebuke to Beijing, which for two decades has been strutting and preening as the self-appointed natural super power of the region.

The judgement says there is no legal backing for Beijing’s claim to most of the South China Sea, across whose waters about half the world’s merchant shipping travels every day. China’s construction of seven islands on reefs and islets it claims, is entirely illegal. And Beijing is responsible for unacceptable environmental damage to coral reefs and other submarine features, as well as devastating effects on marine wildlife by its rapacious fishing fleets.

Beijing’s response this week was to dismiss the court and its judgement as “null and void,” while government-owned media issued thinly disguised threats of a military response if any serious challenges are made to its territorial claims. These threats were aimed at Washington, which has not only affirmed the traditional maritime rights of freedom of passage by sending warships and naval flotillas through waters claimed by China, but is also giving military support to China’s neighbours.

Beijing may dismiss the judgement, but it cannot avoid the authority of the decision. The government of President Xi Jinping must now recognise that what is on the line is Beijing’s trustworthiness as an international partner in everything from trade deals to the working of the UN Security Council. In all likelihood Beijing will, for a while at least, lower the tone of its rhetoric on its territorial claims and probably pull back from its head-butting with its neighbours, Vietnam and the Philippines in particular. What Beijing won’t do, however, is abandon the seven illegal military outposts. Beijing thinks a generation down the road and believes that, in the end, the reality of occupation trounces the law. That strategy has worked well on its colonial occupation of Tibet and Xinjiang, the denial of promised democratic rights to Hong Kong, and would be used with equal utility if Beijing could ever get its hands on the island nation of Taiwan.

The U.S., distracted by a bizarre presidential election campaign that is shrouded in foreboding for the future of the country’s global stature, will not move to assert the court’s ruling. Neither will the Southeast Asian countries whose maritime territory China contests. Beijing has managed to make the South China Sea territorial disputes a hugely divisive issue among the 10 countries of the Association of Southeast Asian Nations (ASEAN). The Chinese government has used its overpowering economic relationships with non-affected ASEAN states such as Cambodia, Laos, Thailand and Myanmar to ensure there is no consensus on how to address Beijing on the issue or even to agree to discuss it.

Nevertheless, China’s imperial pretensions, and its heavy investment in the last two decades in building a modern and threatening high seas navy, have received a significant check. It is also an important piece of symbolism that on this occasion Beijing’s military advances have been confronted by the international rule of law, rather than a military push-back of some kind from the U.S. or Japan.

The weakest link in the apparent power of the Chinese regime at home and abroad is that it does not believe in the rule of law. Specifically, it does not believe that the Communist Party regime is subject to the same rules as ordinary Chinese. At home, there is plenty of evidence that the regime is doomed unless it accepts the rule of law and all the political and social consequences that flow from that. On the international front, this decision by the Permanent Court of Arbitration presents Beijing with perhaps its clearest choice in recent years between being a dependable player on the world stage, or deciding that the road to super power status travels through confrontation and bullying.

It is that low road that brought Beijing to this humiliating court judgement.

Beijing has sought confrontations with Tokyo, its ancient adversary, over claims to Japan’s Senkaku Islands, but has been wary of pushing too hard against the economic and military muscle of its island neighbour. Even so, Japan is alarmed at China’s aggression. The significant victory in this week’s elections by the government of Prime Minister Shinzo Abe is expected to open the way for constitutional changes that will allow Japan to play a more overt military role in the region in concert with allies such as the U.S., Australia and countries of Southeast Asia.

The Chinese government has been far more aggressive and assertive against what it sees as the easily cowed nations to the south. It the last few years Beijing’s navy, coast guard and fishing fleets operating as maritime militias have invaded the economic zones in the South China Sea claimed by Vietnam, the Philippines, Malaysia and even Indonesia, over 1,200 kilometres from the Chinese mainland.

Beijing’s imperial posturing reached something of a zenith in recent months as it constructed seven islands on rocks and reefs in the Paracel and Spratly chains of islets. Some have now been equipped with airfields and all are garrisoned with soldiers or paramilitaries. Most, if not all, have missile defence systems and radar facilities that Beijing could use to impose an air defence identification zone (ADIZ) over the 3.5 million square kilometre South China Sea if it chooses to do so.

With some poetic justice, it is the push-back by the weakest of those littoral states, the Philippines, which has given Beijing a drubbing and changed the future course of regional power politics.

In 2013, after Chinese ships roughly expelled Philippines’ fishing boats from havens in Scarborough Shoals, an area of the South China Sea clearly within Manila’s 200 nautical mile “exclusive economic zone” (EEZ), the administration of then president, Begnino “Noynoy” Aquino decided to take Beijing to court. Manila asked the Permanent Court of Arbitration in the Hague, founded in 1899 and the world’s oldest institution for settling international disputes, to rule on Beijing’s claims and behaviour in the South China Sea.

From the start, Beijing refused to have anything to do with the judicial proceedings, which it dismissed as a “farce,” despite having ratified UNCLOS in 1996. The court therefore took into consideration public statements Beijing has made about its claim that the South China Sea and its islets and reefs have been Chinese territory “since ancient times.” Of particular import in the Beijing case is the map of the South China Sea marked with a “nine-dash” line that appears to show nearly 90 per cent of the sea as Chinese territory. This map was produced in 1947 by the Kuomintang government of China that was defeated in the civil war by the Communists in 1949.

Modern Beijing has always been purposefully ambiguous about what it claims the “nine-dash” line represents. The strength with which Beijing affirms its claims depends entirely on how firmly they are challenged. Sometimes Beijing suggests it has full sovereignty over the area within the line. At other times the suggestion is that, although Beijing claims the Spratly and Paracel islets, it has only economic interests in the fisheries and submarine oil and gas reserves in the bulk of the region.

A central strand in the court decision is to clarify several of the questions stemming from the creation of UNCLOS in 1982 about the degrees of sovereignty that accompany ownership, occupation and use of islands, islets, rocks and reefs. As such, this is a precedent-setting judgement that has profound implications world-wide for nations that base territorial and economic claims on possession of maritime outcrops. That includes Canada’s claims in the Arctic, some of which are challenged by Russia, Denmark and the U.S.

The court’s 15 main findings fall into three areas. The first deals with the status of “historic rights” under the UNCLOS regime, the second with the degree of sovereignty imparted by possession of rocks and reefs versus islands, and the third with China’s behaviour in the South China Sea.

The panel’s first assertion is that by ratifying and therefore accepting the dominance of UNCLOS in 1996, Beijing voluntarily erased all its “historic rights” in maritime regions. Beijing cannot, said the judgement, accept UNCLOS and assert its old territorial claims at the same time.

Throughout its escapades in the South China Sea, Beijing has acted as though the islets, rocks and reefs it claims in the Paracel and Spratly chains give it full sovereign rights. These would include the surrounding 12 nautical miles (22 kilometres) of territorial waters, and, more significantly, the 200 nautical miles (370 kilometres) exclusive economic zone. It is this surrounding 370 kilometre EEZ, covering rich fishing grounds and what look like significant submarine oil and gas reserves, that has been asserted by Beijing to justify its claim to 90 per cent of the South China Sea right down to Indonesian territorial waters.

The court says, in effect, that China’s claim is bunk. All of the islets in the Spratly chain are what the panel defines as rocks. The judges’ criteria are that unless a maritime feature in its unaltered state can sustain human habitation or economic life, it is a rock that does not give EEZ rights, only the 12 nautical miles of territorial waters. China’s massive illegal construction project in recent months to build seven islands does not change that, say the judges. Even if the Spratly islets do belong to China, said the judgement, they are within the Philippines’ EEZ, whose claim predominates outside the 12 nautical mile of territorial waters.

That passage will make uncomfortable reading for Japan, which claims a 200 nautical mile EEZ around Okinotorishima, a man-made research station on a coral atoll 1,740 kilometres south of Tokyo in the Philippine Sea. The judgement makes it clear there is no foundation for Japan’s EEZ claim.

In the third area of the judgement the panel is highly critical of the behaviour of Chinese forces and agencies. It was illegal in 2011 for China to interfere with Philippines oil and gas surveys in the Reed Bank northeast of the Spratly Islands, say the judges. The judgement only deals directly with complaints by the Philippines, so it does not address the incident in 2014 when the Chinese moved an oil exploration rig into waters south of the Paracel Islands claimed by Vietnam. The judgement suggests that action by Beijing, and others where Chinese ships have purposefully damaged oil exploration gear being used on behalf of Vietnam, were also illegal.

Equally illegal, says the court, have been the operations of Chinese fishing fleets within the 200 nautical mile EEZ of the Philippines coast. Even more unbecoming has been Chinese treatment of Philippine fisherfolk, when the perils of the sea demand mutual support among seafarers irrespective of nationality. Chinese Coast Guards’ denial of access to the sanctuary of a lagoon in Scarborough Shoal in the Spratlys was unacceptable, says the judgement.

As well as declaring Beijing’s island-building illegal, the panel also looked at the effects of this construction and of its industrial-scale fishing operations. The judges concluded Beijing’s dredging operations to build its island military bases caused “severe harm to the coral reef environment.” More “severe damage” to threatened species and the environment has been caused by China-flagged fishing vessels harvesting giant clams, turtles and coral.

Ironically, the conclusive victory for the Philippines’ case causes problems for the country’s new president, Rodrigo Duterte, who was inaugurated last month. One of his election promises was to improve relations with China, which had soured under the administration of his predecessor, President Aquino. Duterte is hungry for Chinese investment in infrastructure, especially for a railway network he lusts to build. He says he’s open to reviving bilateral talks with Beijing over joint exploitation of the resources in the contested area of the South China Sea. But thus far, Beijing insists Manila disavow the arbitration court’s decision before there can be bilateral negotiations. Duterte cannot go that far without risking a backlash from outraged Filipinos.

And Beijing too risks a backlash. In recent years the party’s propaganda machine has invested heavily in stirring up nationalist fervour in support of its territorial claims, in large part to divert attention from the economic slump and the endemic outlandish corruption of senior officials and their relatives. The proud image of a militarily rampant China has found much support – though there are also very many thoughtful Chinese who find it distasteful and dangerous. If Beijing now finds it necessary to slink away from its boastful bluster, there is no telling how the public will react.

Copyright Jonathan Manthorpe 2016