Nine dashes, five judges, two contestants. It sounds like a reality television show. In fact, it is the rather obscure — but very important — beginning of a process to delineate fiercely disputed Asian maritime borders according to the rule of law, rather than the law of the jungle.
The nine dashes belong to China. They mark what Beijing says is its historical claim to most of the South China Sea, a vast waterway that borders several other Asian countries. The five judges have been chosen to sit on a tribunal that will determine the validity of that claim under the United Nations Convention on the Law of the Sea (Unclos). The two contestants are the Philippines, which brought the case, and China, whose nine-dash line is being challenged. Strictly speaking, there is only one contestant, since Beijing, though a signatory of Unclos, has not deigned to recognise the process.
Asian countries, particularly the not inconsiderable number that have maritime disputes of their own with China, are watching the case with intense interest. Few, though, have dared say much in public for fear of offending Beijing. Whether you judge it plucky or rash, the Philippines has gone out on a limb.
Manila’s hope is to put its bilateral dispute with Beijing over the ownership of waters and islands close to the Philippine coast to international arbitration. There is an air of desperation about its gambit, which suggests it sees no possible progress through dialogue. Professor Jerome Cohen, an authority on Chinese and international law at New York University School of Law, says the Philippines “bombshell” has shocked Beijing with its audacity.
The case, launched in January, will take perhaps four years to chug through the Unclos system. It has potentially huge implications for a region riddled with explosive territorial disputes, including that between Japan and China over uninhabited islands in the East China Sea.
The Philippines has asked Unclos to adjudicate on the validity of the nine-dash line, produced by China in 1947 to illustrate what it said was its longstanding jurisdiction over almost all the South China Sea. That claim overlaps with the Philippines’ 200 mile economic exclusion zone extending from its coastline.
The case will proceed with or without China. Beijing waived its right to nominate arbitrators, but they have been nominated anyway. The first thing they will have to establish is whether Unclos has jurisdiction in the case. It may not.
Concluded in 1982, the convention is actually quite narrow in scope. Mostly, it confines its activities to matters such as whether a rock counts as an island — and thus whether it generates a 12-mile (19.3km) territorial sea and a 200-mile exclusive economic zone. The question of whether the island belongs to country Y or country X does not fall under its remit.
Even if Unclos declares itself competent to judge the case, there are at least three things to bear in mind before we become too excited. First, contrary to what is often assumed, international law is not some Newtonian absolute. Rather, it is a set of common rules agreed by nations that emerged from a post-Second World War order and whose realities it reflects.
Second, there is very little “morality” when it comes to territorial disputes, no matter how loud countries shout about their inalienable rights. In most cases, it is the job of international law to decide who grabbed which territory first. Nation states with their fixed borders are a relatively new phenomenon. Today’s boundaries have more to do with armies and warships than righteousness.
Third, the case for international law is undermined by the fact that the US, in whose image the postwar order has been created, often stands on the sidelines. Washington, for example, has never ratified Unclos. That makes it hard to insist that Beijing should abide by its decisions.
To cite just one example of how Washington has thumbed its nose at international law when it is inconvenient: In 1986, the International Court of Justice (ICJ) ruled that the US had violated Nicaragua’s rights by mining its ports and funding the Contra rebels. Ronald Reagan, the then American president, simply ignored the decision. Might is generally right. Yukichi Fukuzawa, the great 19th-century Japanese student of western thinking, learnt the lesson well. “One hundred volumes of international law are not the equal of a few cannons,” he concluded.
That does not mean the Philippines is wrong to bring the case. It has done the right thing. It is just a shame that other countries have not been plucky enough to test their claim through international arbitration. Step up, Vietnam, Japan and Indonesia.
One day, China may even participate in such a procedure itself. Professor Cohen tells the story of when, in 1972, he suggested to Zhou Enlai, China’s premier, that Beijing should name someone to sit on the ICJ. The room fell silent before Zhou roared with laughter at the very idea of communist China joining “a racist, bourgeois institution that would never give [it] a fair shake”.
Yet, just over a decade later, China did exactly as Cohen had suggested and nominated a candidate to the ICJ. If the Philippines waits long enough, it may yet get its day in court.