The ruling from the Hague on the South China Sea is stunning. For the region the stakes are huge, and New Zealand’s response is notably more cautious than Australia or the US, writes David Capie.
Last night’s decision by the Permanent Court of Arbitration in The Hague delivered a resounding legal defeat to China’s maritime claims in the South China Sea. The Tribunal ruled (PDF) that China’s claim to have “historic rights” to exploit resources inside its “Nine Dash Line” has no basis in international law. None of the features in the Spratlys group were found to be islands, which means they do not qualify for a 200-nautical-mile Exclusive Economic Zone (EEZ). Some do not even generate a 12nm territorial sea. The Tribunal also sharply criticised China for causing “severe harm” to the marine environment in the South China Sea and for violating the Philippines EEZ.
This was a stunning outcome. Most analysts expected a decision that favoured the Philippines but few predicted the comprehensiveness of the award. But with the case now decided, the big question is: what happens next?
The initial response from Beijing has been entirely as expected. For months the Chinese government has been saying it has no intention of following the ruling of what it calls an “illegitimate arbitration”. The Foreign Ministry declared the award to be “null and void” and said it will “neither recognise not accept” the decision. It’s been left to state media to use more colourful expressions, with Xinhua calling the decision “a bundle of fairy rope”.
But far more important than what China says about the decision is what it does. It is possible that the scale of the legal defeat might make Beijing feel obliged to respond with more than just angry rhetoric. It could declare an Air Defence Identification Zone (ADIZ) over part of the South China Sea, as it already has done in the East China Sea, or move ahead with reclamation activities on the Scarborough Shoal, close to the Philippines island of Luzon. It could deploy weapons to features it controls in the Spratlys. But perhaps the worst case scenario for New Zealand would be if China decides to walk away completely from the United Nations Convention on the Law of the Sea (UNCLOS), a key pillar of a rules-based international order.
The stakes are high and no tribunal ruling will diminish China’s importance to the region’s future. This is not a time for triumphalism, but rather for countries who are interested in regional peace and security to find ways to support constructive diplomacy which engages China. Even countries who agree with every last detail of the ruling must still deal with China as an important regional partner. Sabre-rattling, name-calling, and talk of more freedom of navigation operations will not be helpful. Tensions need to be reduced not exacerbated.
New Zealand’s response so far seems designed to encourage just that approach. Within an hour of the decision’s release last night a brief “comment” from Foreign Minister Murray McCully appeared on the Beehive website. In restating the position he took in two speeches in March, the statement said that “all parties” should respect the tribunal’s decision, and that “different interests in the region should be managed peacefully and in accordance with international law”. It also signals New Zealand’s hopes that the Tribunal’s decision can provide “a platform for resolving the longstanding and complex issues” and its desire for “all parties to work towards this end”.
It’s notable that the release doesn’t mention China by name (except in “South China Sea”) and, unlike Australia or the United States, New Zealand doesn’t refer to the Tribunal’s decision as “legally binding”. Some might see this language as Wellington pulling its punches, but in the immediate aftermath of the decision, while feelings are still raw, it could also be read as the kind of measured public comment that aims to contribute to a positive outcome for the region.
New Zealand won’t be short of chances to share its views over the next few weeks. Tonight McCully will fly out to the Asia-Europe Meeting (ASEM) in Mongolia, where he’ll doubtless have the chance to talk with counterparts from China and Southeast Asia, as well as the European Union. In less than two weeks, he’ll be off to Laos to meet with colleagues from the ASEAN Regional Forum and East Asia Summit. This will give the Key government the chance to gauge the level of unity in Southeast Asia. Chances are, even a strong ruling from this important tribunal won’t be accompanied by the ASEAN countries speaking with one voice. So the South China Sea game will go on, something China knows all too well.