South China Sea de­ci­sion is ir­rel­e­vant

The Myanmar Times - - Front Page - ROGER MITTON roger­mit­ton@gmail.com

IF a tree falls over in the jun­gle and no one hears it, does it make a noise? The old rid­dle now has a new coun­ter­part: If an in­ter­na­tional le­gal body hands down a land­mark ver­dict but no one en­forces it, is it ir­rel­e­vant?

The ques­tion be­came em­bar­rass­ingly per­ti­nent af­ter a United Na­tions tri­bunal in The Hague, in Holland, ruled last month that China’s claim to al­most all of the South China Sea is in­valid.

An­a­lysts around the world hailed the judge­ment as a mas­sive de­feat for China and a great tri­umph for its smaller ri­val claimants, most no­tably the Philip­pines, which took the case to court.

Yet in real­ity noth­ing has changed: No ter­ri­tory has been ceded by China, and none will be. The tri­bunal’s ex­plo­sive de­ci­sion has made no noise.

Not a whim­per came from last month’s ASEAN meet­ing in Laos, where the re­gion’s band of brothers-with­out-back­bones de­clined to even men­tion the judge­ment in its fi­nal state­ment.

That was pre­dictable be­cause China had bought the sup­port of Cam­bo­dia and Laos, while others like Brunei, Myan­mar and Thai­land tac­itly fell into line by say­ing noth­ing about en­forc­ing the ver­dict.

The same shame­ful in­ac­tion and syco­phancy to Bei­jing was on dis­play at a June min­is­te­rial meet­ing in Kun­ming and at the in­fa­mous ASEAN sum­mit in Cam­bo­dia four years ago.

So the re­gion’s ri­val claimants are not go­ing to start mak­ing any noise now, nor are their os­ten­si­ble sup­port­ers in the United States, Aus­tralia, Ja­pan and Europe.

In fact, the EU was even more craven in its news re­lease by de­clin­ing to even re­fer to China or to state that the tri­bunal’s judge­ment should be bind­ing.

Re­ally, everyone ex­cept China should have been crow­ing af­ter the tri­umphant ver­dict, but in­stead they have been cow­er­ing.

It is as if the mag­ni­tude of the de­ci­sion has left them stunned and un­able to know what to do next, while China has moved quickly and turned its seem­ing de­feat into a real vic­tory.

As Feng Zhang of Aus­tralian Na­tional Univer­sity said last week, “It is be­com­ing clear that the tri­bunal’s find­ing was so sweep­ing that it is para­dox­i­cally less likely to have any real-world im­pact.”

He con­tin­ued, “Per­haps the biggest para­dox of the rul­ing is that many pol­icy elites in­side China now pri­vately see it as a big gift to their gov­ern­ment.”

He was right, and to un­der­stand the crazy out­come, it pays to re­call that the tri­bunal ruled that China had no right to most of the South China Sea based on its oc­cu­pa­tion of is­lands dot­ted across the sea – the rea­son be­ing that they are not real is­lands, but just rocks that can­not sus­tain life and thus fail the most ba­sic test to be re­garded as an is­land un­der in­ter­na­tional law.

To pass that test they must be above wa­ter at high tide in their orig­i­nal state be­fore any recla­ma­tion has been done, and they must be able to sus­tain hu­man habi­ta­tion and have their own wa­ter sup­ply.

None of them do, so they do not qual­ify as real is­lands and who­ever oc­cu­pies them has no right to a 200-mile ex­clu­sive eco­nomic zone, but only to a measly 12 miles of sea around them.

That means own­er­ship of the is­lands, or rocks, is al­most worth­less be­cause it only brings ter­ri­to­rial rights to about 1.5 per­cent of the South China Sea, not the more than 85pc Bei­jing claims.

Al­though it is a stag­ger­ingly pro­found judge­ment, the prob­lem is that no one can put it into prac­tice, and so, to re­turn to our orig­i­nal rid­dle: If no one can en­force it, is it not ir­rel­e­vant?

Cer­tainly, Bei­jing be­lieves it is, and has adamantly re­fused to ac­cept the ver­dict and will not re­lin­quish its claim to any of the South China Sea.

And as their craven syco­phancy at re­cent re­gional meet­ings showed, none of its ri­val ASEAN claimants nor even the United States is go­ing to try to force China to hon­our the tri­bunal’s de­ci­sion.

Of course, since that de­ci­sion sig­nalled that the other claimants also have no sovereignty rights to large ar­eas of the sea, it can be ar­gued that everyone lost – or that everyone won.

But China, the biggest claimant by far, re­jects that view. Its pres­i­dent, Xi Jin­ping, said re­cently that his na­tion’s “ter­ri­to­rial sovereignty and marine rights” over the South China Sea will not be af­fected by the rul­ing.

In re­sponse, everyone else has backed down. Even the Amer­i­cans, who had ear­lier said Bei­jing risked “ter­ri­ble” dam­age to its rep­u­ta­tion if it ig­nored the ver­dict, have done noth­ing.

Given that sit­u­a­tion, the US Sec­re­tary of State John Kerry was point­edly asked last month, “If you don’t men­tion the rul­ing pub­licly, if no­body ad­mits it, then are you not afraid that it could be­come ir­rel­e­vant?”

He replied, “It’s im­pos­si­ble for it to be ir­rel­e­vant. It’s legally bind­ing. It’s ob­vi­ously a de­ci­sion of the court that is recog­nised un­der in­ter­na­tional law and it has to be part of the cal­cu­la­tion.”

Legally bind­ing. Recog­nised. Part of the cal­cu­la­tion.

Sure, it is so bind­ing and recog­nised that Bei­jing has de­clared it “null and void”, while Kerry and his re­gional co­horts have been too pet­ri­fied to even men­tion it pub­licly in their re­cent meet­ings.

As Greg Pol­ing at Wash­ing­ton’s Cen­ter for Strate­gic and In­ter­na­tional Stud­ies said, “We should all be wor­ried that this case is go­ing to go down as noth­ing more than a foot­note be­cause its im­pact was only as strong as the in­ter­na­tional com­mu­nity was go­ing to make it.”

And they have cho­sen to side­step it and make no noise. So China wins the whole sea. Game over.

Photo: EPA

US Sec­re­tary of State John Kerry (left) shakes hands with Philip­pine Pres­i­dent Ro­drigo Duterte in Manila on July 27. Kerry and Duterte dis­cussed the Philip­pines’ dis­pute with China over the South China Sea.

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