The South China Sea’s upcoming judgement day is going to be a tipping point for tensions and a watershed for regional dynamics, writes Jacqueline Espenilla.
China has long claimed that the South China Sea dispute can only be resolved by negotiation. This belief is purported to be the rationale for its refusal to participate in the arbitration case initiated by the Philippines under the auspices of the United Nations Convention on the Law of the Sea (UNCLOS). From China’s perspective, the UN-backed process in the Permanent Court of Arbitration amounts to nothing more than Philippine legal sabre-rattling and constitutes “an abuse of the compulsory dispute settlement procedures”.
In its October 2015 award on jurisdiction and admissibility, the tribunal found that the two countries never entered into a legally binding agreement to settle their disputes via bilateral negotiations, nor did they ever agree to exclude any other dispute settlement procedure. The tribunal further emphasised that China’s repeated insistence on negotiating indefinitely cannot dislodge the “backstop of compulsory, binding procedures” provided by Part XV of UNCLOS, especially since the Philippines never actually relinquished this right during their years of dialogue with China.
Beyond legal speak, one practical question should be considered: does negotiating with China still make sense at this point? Rodrigo Duterte, the Philippines’ new President, seems to think so. In a statement made on July 5, he affirmed his pre-presidency stance on re-opening bilateral discussions with China, saying that ultimately, he would proceed according to the greater interest of the country. China has welcomed this seeming policy shift by immediately having Chinese Foreign Ministry Spokesperson Hong Lei reiterate China’s desire to “work in unison” with the Philippines.