Illegitimate Process

By Shannon Ebrahim

The West saw The hague Arbitral Tribunals arbitration of the South China Sea dispute as an important crossroads in Chinas rise as a global power. The first misperception of the West is that China is rising - it is not rising， it has already risen. China is actually 10 steps ahead of the West in most cases， and Shanghai makes New York look like the old world.

The second mistake the West has made is to view the Arbitral Tribunal as a legitimate process in international law. If one looks at the provisions of the UN Convention on the Law of the Sea （UNCLOS）， there was no legal basis for the tribunal， to begin with.

No jurisdiction

UNCLOS has no jurisdiction over territorial issues. It also affords member states like China the right to choose the procedures and means for dispute settlement. The Hagues arbitration of the South China Sea dispute was not only outside the jurisdiction of UNCLOS， but also disregarded Chinas preference for direct negotiations and consultations with the Philippines.

The tribunal ruled on July 12 that Chinas claim to the waters of the South China Sea has no legal basis， stating that while China and other countries have historically used the islands in the South China Sea， China never exercised exclusive authority over the waters. China considers the arbitration award to be null and void， with no binding force. It has said it neither accepts nor recognizes it.

Philippine dialogue？

The case before The Hague tribunal was filed by former Philippine President Benigno S. Aquino III during his term， which ended on June 30. The new President of the Philippines， Rodrigo Duterte， has signaled that he will be more accommodating toward China than his predecessor. Duterte has also said that Manila would be ready to talk to China if the tribunal ruled in its favor.

This leaves open the possibility of negotiations， which China has always called for. However， China will not accept the tribunals ruling as the basis for settling the dispute.

In his statement following the arbitration ruling， Chinese Foreign Minister Wang Yi noted the statement by the new Government of the Philippines regarding its readiness to reopen consultation and dialogue with China. If the arbitration case was orchestrated as a political provocation by the former Government of the Philippines on the prodding of Western powers， the new administration might pursue a different course once it reevaluates its strategic national interests. China could assist the Philippines in implementing poverty alleviation strategies， which the latter sorely needs， given a quarter of its population live in poverty.

Protecting sovereignty

But whether or not the Philippines pursues the path of negotiations with its neighbor， the West should not make the strategic error of assuming that China will not fight to defend its right to navigate freely through the South China Sea and to protect what it claims are its sovereign rights over the South China Sea islands. In a speech in Washington in July， former State Councilor Dai Bingguo said the findings of the tribunal would amount to no more than “waste paper.” “China will not back down from activities in the South China Sea， even in the face of a fleet of American aircraft carriers，” Dai said.

Days before the arbitration ruling， Chinese Vice Foreign Minister Liu Zhenmin warned the West that “the U.S. rebalance of the Asia Pacific [region] should not be advanced on ideological grounds- turning this region into a showground of naval and air power， or forcing regional countries to take sides.”

The Western media is used to rallying around a cause without dissecting the credibility of that cause， and this is one such instance where the Western media has arguably been on the wrong side of history. The Washington Post has carried frequent headlines suggesting that China intends turning the South China Sea into an internal lake or a Chinese lake， without providing any proof to back up such claims. The intended effect was to create the impression that China is the aggressor， and not prepared to operate within the confines of international law.

The real situation

The reality of the situation is that the Arbitral Tribunal has no mechanism for enforcing its decision， and China will do exactly as it has stated all along - simply ignore its ruling. In 1986， the United States ignored a ruling from the International Court of Justice that declared its mining of the harbors of Nicaragua to be illegal. Washington had not ratified UNCLOS at the time， and still has not. This leaves it with little credibility in terms of pronouncing on matters regarding adherence to UNCLOS.

It is an even greater double standard for the United States to have provided rearguard support to the Philippines to unilaterally initiate the arbitration at The Hague - which itself is in violation of UNCLOS.