Manoj Joshi: Not just China, the world's in deep water

The biggest issue arising from last weekrsquos verdict by the arbitral tribunal on the South China Sea is the question of the rulebased international system Since 1971 the world community has made an effort to bring the Peoplersquos Republic of China into this system by helping it become a member of the UN Security Council the UN Convention on the Law of the Seas UNCLOS the Nuclear NonProliferation Treaty the World Trade Organisation and other global regimesActivists protest in Vietnam yesterday after China rejected a UN tribunalrsquos ruling that dimssed the countryrsquos territorial claim to much of the South China Sea PicAFPBy rejecting as it has done the procedure of the compulsory disputesettlement mechanism of UNCLOS China could well undermine a raft of international agreements that incorporate arbitration to resolve a dispute which cannot be settled through bilateral negotiation This has wider implications since compulsory arbitration often feature in business agreementsIn ratifying the UNCLOS the Chinese voluntarily accepted its compulsory dispute resolution mechanism Beijing therefore has to accept the tribunalrsquos decision because UNCLOS rules say it is the tribunal which decides whether the exclusions claimed by a state apply in a particular case not the state itself The tribunalrsquos award is final and without appeal In this case the tribunal considered Chinarsquos objections and overruled themYet realpolitik would suggest that the tribunal decision is unlikely by itself to persuade China that its claims in the South China Sea are far more limited than it had assumed But neither the tribunal nor the Philippines has the power to enforce the ruling which China had declared at the very outset that it would not honour There is one body which could theoretically legally enforce the verdict mdash the UN Security Council acting under Chapter VII of the UN Charter But as is well known China is a vetowielding member of the UNSCOfficially China has said that the maritime delimitation issue of the South China Sea should be settled through negotiation with countries directly concerned ldquoin accordance with international law including UNCLOSrdquo Beijing is being careful not to trash UNCLOS itself but only offering what it had on offer before mdash bilateral negotiations It has also referred to its earlier offer of shelving the dispute and entering into joint development projects in the regionBut it has not said anything about the fact that the tribunal has questioned its very claim to territorial entitlements for the artificial islands that it has constructed Neither has it commented on the tribunalrsquos refusal to accord the Nine Dash Line any status in international lawThe choices before China are quite stark It can aggravate the situation by evicting the Philippines from the Scarborough Shoal and building an artificial structure on it Or station fighter aircraft on the artificial islands and declaring an ADIZ over the South China SeaA base in Scarborough Shoal would be just 185 nm from Manila and at a strategic location that would be unacceptable to Washington DC Such a posture will bring it to a dangerous edge in its relationship with the US which is treatybound to support the PhilippinesChina cannot easily ignore the US Besides their trade which tops 560 billion and Chinarsquos holdings of 13tn US treasury securities there is a huge governmenttogovernment and peopletopeople interaction between the two countries A conflict over the South China Sea would be disastrous for both as well as the international communityHistorically countries like the US Russia and other great powers have resisted rulings of international tribunals but they have all subsequently found ways of arriving at an accommodation The US and EU should work to manage the fallout in a manner that does not compel China to lose face and more important feel that its security is in any way imperilled Hopefully China is looking for an honourable exitIf it is then quiet behindthescenes diplomacy can be undertaken to moderate and then eliminate the tensions This could be by first allowing Filipino fishermen to access Scarborough Shoal in exchange for the Philippines withdrawing its military contingent from the Second Thomas Shoal Second China could freeze and then roll back its artificial island construction activity Actually what the verdict has done is to reduce the area of maritime claims of all the claimant states by declaring that none of the features of the Spratlys Islands are true lsquoislandsrsquo entitled to a territorial sea and a 200nm EEZ though some could be classed as rocks visible at high tide and have a 12nm territorial sea This is then an opportune moment for them to deescalate and go in for genuine negotiations Further China and ASEAN could move forward in working out the long stalled Code of ConductAs the most powerful state among the claimants China needs to think hard about the consequences of conflict with the US as well as buying permanent hostility of its Southeast Asian neighbours by denying them their rightful maritime claims by the use of force It needs to think hard too about its reputational damage as an emerging great powerThe writer is a Distinguished Fellow Observer Research Foundation New Delhi