South China Sea decision is irrelevant
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.
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.