As President Obama meets with Asian leaders this week, his conversations with Chinese president Xi Jinping will surely touch on what has become a contentious topic with deep implications in the international community – namely, the rise of Chinese expansionism into the South China Sea. This, in turn, will reverberate on the international order and ability of countries to hold each other accountable under international treaties.
China has expanded its military footprint in the South China Sea, pushing troops and installations further and further away from its mainland. By picking up an island here and an island there, China gives itself greater control over important shipping lanes, However, as more and more countries along the South China Sea are decrying, these incursions can be construed as breaches of their territory and sovereignty.
The Philippines has gone so far as to bring an arbitration against China at the Permanent Court of Arbitration, claiming that China is in violation of UNCLOS (the United Nations Convention on the Law of the Sea). This blog has touched on this topic before. At the time, China had indicated that it would not participate in the arbitration.
And indeed, China did not attend the arbitration. The case of Philippines v. China was heard over 5 days in late November in the Netherlands. It bears mentioning that representatives from Indonesia, Japan, Malaysia, Thailand, and Vietnam were present to observe the arbitration. This illustrates the stakes of this arbitration as its potential scope touches on the major players international trade in the region.
Although the Philippines pressed its case, China chose not to attend, reiterating its position that “it does not accept the arbitration initiated by the Philippines.” The arbitral tribunal nevertheless pressed forward with the arbitration on the merits, and cautioned that, due to a failure to appear, the Tribunal may take whatever steps “it may consider necessary, within the scope of its powers under the Convention, its Annex VII, and [the Rules of Procedure], to afford to each of 13 the Parties a full opportunity to present its case.” It gave China a deadline of January 1st, 2016 to present a case or comment in an effort to make itself heard. China demurred.
A decision is expected by the middle of this year. However, the real issue is not what the decision will say, but whether the decision will have any sort of effect. If the decision is adverse to China and China disregards it, what then? What recourse will the Philippines (or any of the other countries in the region) have to enforce the arbitral award? It is difficult to imagine that, even if China had agreed to participate in the arbitration, China would accept or comply with an adverse ruling. What happens when the award is issued will have deep implications not only in the South China Sea, but also across the world, as the enforceability of arbitral awards against states and nations becomes an open issue.