Wednesday, June 4, 2014



The Permanent Court of Arbitration is one of several bodies that arbitrates cases related to the 1982 UN Convention on the Law of the Sea (Unclos). While China is a signatory, it says South China Sea disputes are exempted because of a 2006 declaration it made to the UN. However this international tribunal has given China six months to respond to legal claims by the Philippines regarding disputes between the countries over the South China Sea.
The Philippines back in March presented a 4,000-page “memorial” to the Permanent Court of Arbitration in The Hague, asking the tribunal to invalidate the “nine-dash line” – a demarcation on Chinese maps that includes much of the South China Sea and suggests that China claims most of the waters.

China has refused to participate in the case. But the tribunal gave it until December 15 to file a response, citing an obligation to give “each party a full opportunity to be heard and to present its case”. 

 If China defaults by not showing up they have no legal leg to stand on in their outrageous territory grabbing behavior in the China Seas. If they do show up and argue, they will lose, but at least can argue that the point is undecided for while longer while continuing to use their Coast Guard like a blunt instrument. When either the Dragon fails to show up in court, or the gavel pounds out a final decision, China will unarguably be in the wrong in terms of international law. No nation in the region or using the waters of the region need listen to the Dragon's Coast Guard outside of China's own territorial waters, and to a more limited extent, within their UN recognized Chinese EEZ. Any enforcement action by the Dragon's coast guard outside of the confines of their own undisputed waters will be recognized as grossly illegal vice arguable. Any enforcement action out side of Chinese UNCLOS defined waters could be an act of war. 

 Of course the Dragon is a thug state and might well decide to continue with its unwelcome ways. If they do, eventually it will come to shooting and the Dragon is going to be surprised by the strength of its neighbors and their supporters. As we have predicted before it would spell regime change in Beijing. The Dragon's surest guarantee of access to the far Pacific is friendly relations with the Island states that surround the sea approaches to the Dragon Lair. Despite the vast size of their navy and now coast guard these fleets could literally be "fish in a barrel" to a combined naval effort. No one has any interest in invading the Dragon's mainland, the Communist won't be able to convince the populace for very long that there is any actual threat to them other than the economic ruin that China's naval adventures have brought them. We predict communist officials hung from lamp posts if the Dragon starts naval shooting and then tries to hold out for too long, not from invaders but from the Chinese people who have been anticipating increased prosperity that can only come from uninterrupted trade.  

 A loss at court by either trial or default however, gives the Dragon a face saving chance to reverse it disastrous naval policies. They can appear to be reluctantly complying with decided international law in slowly retreating from their forward positions in other peoples waters, and gradually reducing their over sized coast guard to the size they really need for maritime law enforcement, environmental protection, and search and rescue inside their actual lawfully recognized waters. We don't care to predict which way the Dragon will swim. We must however acknowledge the legal scholarship and skilled advocacy of the Philippine's lawyers. They may not have slayed the dragon at the door yet, but they have backed it to a wall. At the moment they deserve the international spot light and the thunderous applause of the global legal profession. This was one of the finest hours of the legal profession. With a luck, namely the application of common sense by the Dragon, this may prove to be the legal argument that stopped both territorial theft and a naval war. The next challenge for the Philippines, Malaysia, Brunei, and others is, can their lawyers sort out the sea border issues between and among them, including the few legitimate contests with the dragon?  What the region needs is peace and cooperative development of the ocean resources. This is best for everyone including the Dragon.


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