A Court You’ve Never Heard of Is About to Raise the Stakes in the South China Sea

An obscure court in The Hague will soon issue a ruling likely to inflame tensions in the South China Sea and force Washington to clarify how far it is willing to go to defend its allies in Manila.

The international tribunal is due to issue a decision this month over territorial disputes in the strategic waterway that have pitted China against its smaller neighbor, the Philippines. Most experts believe the court will side with Manila on the key issues.

But China has already rejected the court’s authority and vowed to stick to its far-reaching claims over the contested shoals, reefs, and rocks that the Philippines also asserts are its own. With a minuscule navy and coast guard, Manila will be looking to the United States for both diplomatic and military support. But, so far, Washington has stopped short of promising to come to the rescue of the Philippines if its ships clash with Chinese vessels in the South China Sea.

“We’ve had a number of uncomfortable senior-level engagements with the Filipinos over the past few years where they have pressed us, quite hard at times, to make our commitments clear,” a former senior U.S. government official, who was present at some of the discussions, told Foreign Policy. But the United States always declined to clarify its stance, the ex-official said.

The showdown in the South China Sea has been heating up for years, thanks to China’s large-scale land reclamation and aggressive use of fishing fleets and coast guard ships to bully other countries to steer clear of what Beijing considers its territory.

But the real spark threatening to ignite that tinderbox is 6,000 miles away, in the wood-paneled, stained-glass chambers of the Permanent Court of Arbitration. The five-person tribunal has been wrestling with a host of tricky legal questions, poring over centuries-old maps, parsing legal terminology, and studying satellite images of the disputed outcrops since the Philippines filed its complaint in 2013.

From the beginning, China refused to acknowledge the tribunal’s jurisdiction in the case, or even the Philippines’s right to seek arbitration, and did not participate in the proceedings that concluded late last year.

The Philippines had argued that China’s so-called “historic” claims to the waters of the South China Sea — outlined in a sweeping “nine-dash line” that purports to show Chinese control over nearly all of the waterway — date only to 2009 and lack all basis in the historical record and in international law. Lawyers noted in particular that none of the features in dispute — from Fiery Cross Reef to Gaven Reef — had any Chinese-language names until recently, belying Beijing’s claims of a long, documented, historical relationship with those rocky outcrops.

Further, the Philippines argued, the reefs and atolls that China has occupied aren’t islands at all and thus don’t entitle Beijing to claim the surrounding 200 miles of water — and no amount of dredging and land reclamation can make them islands. Moreover, Manila said that some of the features are not even rocks, as they are underwater at high tide, and do not qualify for a boundary of 12 nautical miles. Finally, the Philippines argued that China’s aggressive behavior, including forcing Philippine fishermen and coast guard ships out of their own waters, violates the U.N. Convention on the Law of the Sea that China ratified.

While China never formally responded to The Hague tribunal, Chinese officials have repeated their own counterarguments in speeches, essays, and statements. They simply claim that the rocks and reefs in those waters are Chinese territory and always have been and that China has “historic rights” over the vast expanse of the South China Sea, even though the U.N. convention grants no such rights. Recently, China launched a public relations counteroffensive to discredit the tribunal and its ruling before any decision has been made public.

Most legal experts expect the tribunal will rule in favor of the Philippines on most, if not all, of the questions, and a decision is expected this month.

James Kraska, a professor of international law at the U.S. Naval War College, is one of those expecting a big win for the Philippines. And China, he said, which was bound to submit to the arbitration, “is legally bound to comply with the decision.”

But Beijing has vowed it will not respect the panel’s ruling, regardless of what it decides, and that is almost certain to raise temperatures across Asia. Chinese officials say they respect international law but argue that panels like the one in The Hague have no authority.

“All the islands, where we are doing reclamation, are Chinese islands, are Chinese territory,” Wang Xining, a deputy director-general at the Chinese Ministry of Foreign Affairs, said in a recent interview. “So on the South China Sea, I think there is a huge misunderstanding. We wish to act based on international law.”

Inside China, Kraska said, a legal defeat would be a slap in the face to leadership in Beijing, which has against all evidence and law insisted that the disputed areas are sovereign Chinese territory.

“China’s costs from losing will be great. Through its conduct, Beijing already has killed the meme of its ‘peaceful rise,’ so most of the damage has already been done,” he said. But “the decision will be embarrassing and have its greatest impact regionally in the coming decades, and internally, trying to explain to its people how it lost.”

Analysts and former U.S. government officials say China has a range of options as to how to respond. It could issue a diplomatic protest, send more ships to the disputed waters, step up dredging and land reclamation activities at contested reefs, or even implement an “air defense identification zone” (ADIZ) around all the islets it lays claim to. Under an ADIZ, Beijing would demand foreign aircraft seek Chinese permission to fly through the area.

But few expect China to seek a military clash with the United States, and even an accidental escalation is less likely than a few years ago, said retired Adm. Jonathan Greenert, the U.S. Navy’s former chief of naval operations, thanks to new communications protocols he helped put in place.

For the Philippines, a legal win would be, above all, a moral victory and could well inspire other countries in the region to also seek arbitration; indeed, Japan and Indonesia have toyed with doing just that in their own disputes with China.

“The Philippines maintains that the decision of the tribunal, once rendered, will be legally binding and should be accorded due respect by everyone, including China,” Jose Cuisia, the Philippine ambassador in Washington, told FP.

But the biggest question is how the United States will respond to the panel’s ruling and especially to any uptick in tension between the Philippines and China.

If the waters around those disputed atolls are determined to be international waters — rather than Chinese turf — then Washington will likely be under pressure to conduct more freedom-of-navigation operations with naval ships. By sailing within 12 miles of those disputed features, the United States would make clear that those waters are open to all — and can’t be fenced off by Chinese forces. That’s a crucial point to underscore in a waterway that moves more than $5 trillion worth of goods annually.

“I think it’s incumbent on us to insist we’re not going to recognize” the Chinese claims, said Greenert, who stepped down as Navy chief last year. However, the sluggish U.S. response a few years ago allowed Beijing to create facts on the ground with its large-scale reclamation and construction of military harbors and airfields, he said, a view shared by other former officers and diplomats.

“We did not get out ahead of it,” Greenert said. “It’s a fait accompli; they are there. It is unfortunate.”

An even bigger looming question is whether Washington will defend the Philippines if it gets into a scrap with China over those rocks and reefs. Since 1951, the Unites States and the Philippines have maintained a mutual defense treaty. During the Cold War, U.S. officials made clear that the treaty commits the United States to defend the Philippines not just in the event of an attack on its home islands, but also in the event of a military challenge in the waters of the South China Sea. In recent years, the U.S. administration has not specified whether that interpretation still stands.

“As President Obama has said, our commitment to the Philippines is ironclad,” U.S. State Department spokeswoman Anna Richey-Allen said.

But the nature of the U.S. commitment in the event of a showdown on one of those disputed shoals is still not entirely clear. Richey-Allen told FP that the State Department does not “speculate about hypothetical situations” with respect to the defense treaty.

Experts and former U.S. officials say the ambiguity in Washington’s stance potentially reins in both Manila and Beijing from taking rash action, because they don’t know how the United States might respond.

“The basic logic of the U.S. government position is that strategic ambiguity provides us more maneuvering space than might otherwise be the case,” the former official said.

But in the case of another territorial dispute involving China and a U.S. ally, Washington has been crystal clear about its alliance commitments. In the East China Sea, where Beijing is at loggerheads with Tokyo, top American officials and President Barack Obama himself have promised that the United States would honor its treaty obligations and come to the defense of Japan if a conflict erupted over the disputed Senkaku Islands, known in China as the Diaoyu.

The different approaches to Japan and the Philippines are partly due to the language of the defense treaties, experts say, and partly a calculation that Tokyo has a more capable military that could deter possible provocations by Beijing.

When Asian and Western defense officials, including U.S. Defense Secretary Ash Carter, gather in Singapore for an annual security conference this weekend, the imminent court ruling from The Hague — and America’s potential response — will be the main topic of discussion. Carter’s scheduled speech will be closely followed for any hints of a change in Washington’s policy.

When it comes to maritime tensions between China and the Philippines, one potential flash point that could draw a U.S. response is the Second Thomas Shoal. A team of less than a dozen Philippine Marines are stationed at the shoal on a rusting, World War II-era ship, the BRP Sierra Madre, which was run aground deliberately to safeguard Manila’s claims in the area.

If the Philippine troops run into trouble, the Obama administration could be forced to make a difficult call. But U.S. officials have privately discouraged Manila from taking any action that could trigger a crisis.

Or, as another former senior administration official put it: “Does the U.S. really want to get into a war over the Second Thomas Shoal?”

FP’s Bethany Allen-Ebrahimian contributed to this article.

Photo credit: Jay Directo/AFP/Getty Images