How do you evaluate the arbitral tribunal’s decision?
China has suffered a severe legal defeat. The arbitral tribunal has decided even more comprehensively in the Philippines’ favour than most experts expected. The rejection of “historical rights” to maritime areas within the “nine-dash-line” is a harsh blow to Beijing. This blow could have been softened if the court had declared the Taiwanese-held Itu Aba an “island”. Under the law of the sea this could warrant a large “exclusive economic zone.” The arbitrators have, however, found that that none of the features claimed by China are such “islands”, and that China has violated the law of the sea through its construction of artificial islands and interference with Philippine fishing and oil and gas exploration.
China has rejected the decision as expected. What does that mean for efforts to integrate the country into international legal frameworks?
The arbitral award and Beijing’s explicit non-compliance constitute a turning point: China is breaking international law. The Chinese government has no right to continue to negate the tribunal’s jurisdiction and the fact that it is bound by its decision. China’s neighbours and Western democracies have to adjust their expectations regarding China’s gradual integration into the international order. The Chinese leadership will not let this award stop it from establishing itself as a comprehensive “maritime power” in the region.
What does the tribunal’s decision mean for the region? Do you expect an escalation?
Washington will likely mount a massive diplomatic campaign (“shaming”) to criticize China’s non-compliance and strengthen its naval presence to underscore its rejection of Chinese claims. The situation might escalate, if China responds by reasserting its claims. More regular stand-offs at sea would increase the risk of military conflict, which could be brought about by miscalculations or unauthorized advances by individual actors on the ground.
Other states in the region might be tempted to use the new level of international support to advance their own claims. The new president of the Philippines, Rodrigo Duterte, has, however, announced that he wants to return to negotiations with China, which could allow for temporary de-escalation on the regional level.
Would an escalation harm the interests of Germany and other European states as well?
Germany’s interests are already damaged, as China’s rejection of the arbitral award undermines the international legal order. This order is the basis of Germany’s world-wide trade and a central pillar of common European foreign policy.
An escalation would increase the political pressure for Berlin to take sides more explicitly. It would become more difficult to retain the role of a “mere” intermediary, and to avoid harming its relationship with Washington, and mainly Beijing.
What is the role of Germany and Europe in a potential solution to the conflict?
The German government should convince the Chinese side that it is in China’s interest to remain within the framework of the law of the sea. This concerns international recognition of China as a responsible power, China’s continued “place at the table” when reforms of the system are discussed, as well as economic interests regarding access to seabed resources and effective legal protection of China’s commercial fleet.
At the same time, leading European states can help to block China from using coercion to force its claims on others. Within the framework of the G7, they can use the G20 summit in Hangzhou this September to publicly criticize the lack of conciliatory moves by the Chinese government. Should Beijing decide to escalate further until then, a boycott of the summit should be on the table.
Additionally, Berlin and its partners should strengthen Southeast Asian states’ independence through new diplomatic formats – such as a G7 Plus format that includes regional states impacted by the East and South China Sea disputes – free trade treaties, and financial and institutional support.