Predictions are a tricky business, especially with something as complicated as the outcome of Manila’s arbitration case against Beijing’s claims in the South China Sea. A tribunal at the Permanent Court of Arbitration in The Hague, Netherlands, will rule on the case on July 12. Given the complexity of the arguments being made, exact predictions are a fool’s game. But it is possible to examine the broad strokes of likely outcomes.
Possible Outcomes of the Case
The core of the Philippines’ case is a challenge to the legitimacy of the nine-dash line—China’s claim to most of the South China Sea. According to the United Nations Convention on the Law of the Sea (UNCLOS), all maritime entitlements emanate from sovereignty over land. But the nine-dash-line is not based on land features—it stretches, apparently without any underlying rationale, over 1,000 miles from the southern Chinese coast. As such, the arbitral tribunal will likely rule that the nine-dash line is not a sufficient basis for a maritime claim, and Beijing must redefine its claims based on the Chinese coast and the disputed island groups within the sea.
Intertwined with its ruling on the nine-dash line, the tribunal is likely to rule that Beijing’s claim to ill-defined “historic rights” throughout the South China Sea is illegal. UNCLOS allows very narrowly defined claims to historic bays and waters. Legal precedent also allows traditional fishing rights within overlapping territorial seas in very specific circumstances. Neither circumstance is applicable to Beijing’s claim over resources throughout the entire South China Sea.
Two other claims made by the Philippines seem like homeruns. First, the arbitrators will almost certainly rule that China’s environmental destruction during its creation of artificial islands in the disputed Spratly chain was a violation of its responsibilities under UNCLOS. Second, the court will likely rule that Scarborough Shoal, which China seized in 2012, is legally a rock not an island capable of sustaining human habitation or independent economic life. This is vital because under UNCLOS, the former is entitled only to a 12-nautical-mile territorial sea, while the latter can generate a full 200-nautical-mile exclusive economic zone (EEZ) and continental shelf.
The more uncertain parts of the Philippines’ case are those that deal with the status of features within the Spratly Islands. China occupies seven reefs and islets there—four of which Manila wants the court to declare are rocks and four it wants classified as low-tide elevations—reefs that are underwater at high tide and therefore not entitled to any maritime entitlements of their own. The court could find it impossible to rule on some or all of these because of a lack of evidence or because of the ambiguous definition of habitability under UNCLOS. It could also find that ruling on them is unnecessary or beyond its jurisdiction because doing so would first require delimitation of maritime boundaries—something that is outside the tribunal’s purview.
Much of this hinges on the status of a single island not occupied by either Manila or Beijing. Itu Aba, occupied by Taiwan, is naturally the largest of the Spratlys and the only one with a likely supply of fresh water. The court may find that in order to address many of the Philippines’ claims, it must first determine the legal status of Itu Aba. If it is an island, then it generates an EEZ and continental shelf on which most of the other Spratlys sit, thereby complicating a ruling on several of the questions asked by the Philippines.
So What?
For international jurists, July 12 could be the most precedent-setting day so far this century. The arbitral tribunal in The Hague could help cement the primacy of UNCLOS over preexisting claims and could clearly delimit the few exceptions for historic rights. It could also provide the first real clarification of the purposely ambiguous distinction between rocks and islands. The ruling will only be legally binding upon China and the Philippines, but it will have enormous impact on future jurisprudence and on the perceived legitimacy of other claims in the South China Sea and around the world.
But there are complications. First, if the Philippines wins everything, it could come to regret it. A ruling that all features in the South China Sea warrant no more than territorial seas could leave China with so little to claim that an eventual compromise will be less, not more, likely. On the other hand, a ruling that eliminates the nine-dash line and historic rights but preserves China’s ability to make EEZ and continental shelf claims from at least Itu Aba would leave a path for Beijing to retain a very large claim but still situate it within the bounds of UNCLOS.
The second, and more obvious, complication is the lack of an enforcement mechanism for the ruling. China has been clear that it will reject any final award from the court. Despite this fact of international arbitration, the vast majority of awards over the last century have eventually been respected. This is because reputational damage matters to modern states. Being seen as a rogue brings with it various opportunity costs, especially the unwillingness of other states to work with or trust the commitments made by the offending nation. In this case, it directly undercuts Beijing’s narrative that it is a peaceful rising power that deserves a larger hand in shepherding the international system. Ultimately, the success of the Philippines’ legal effort will not be determined on July 12, but years from now, depending on whether it and likeminded countries, including the United States, can sustain enough reputational pressure to convince Beijing to seek a face-saving way out.
