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Simmering South China Sea dispute expected to boil after court ruling: experts

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Staff Writer

The simmering dispute in the contested South China Sea is about to turn to a boil.

With an international arbitration court ruling on the legality of China’s “nine-dash line” claim to much of the South China Sea set to be handed down in the coming days or weeks, experts say the situation is likely to get a lot more complicated in the months and possibly years ahead.

The case, brought before the Permanent Court of Arbitration (PCA) at The Hague by the Philippines, is widely expected to end in a ruling favoring Manila, which says that Beijing’s claims violate United Nations Convention on the Law of the Sea (UNCLOS) agreements about territorial seas and exclusive economic zones (EEZ).

While both China and the Philippines are signatories to the treaty, Beijing has refused to participate in the process and vowed to ignore its ruling.

“The PCA is likely to determine that none of the land features at issue are entitled to an EEZ or continental shelf, and that some are not entitled even to a territorial sea,” James Kraska, research director at the Stockton Center for the Study of International Law at the U.S. Naval War College, wrote in late April in a paper posted to the Maritime Awareness Project website.

“The decision will not make China walk back its claims or undo its island building, but it will challenge the country’s notion that the law is the instrument of the strong to control the weak,” Kraska wrote. “Ineffective as they are, international law and the moral authority of a liberal world order pose a central obstacle to Chinese ambitions.”

Another key result of the ruling could see China’s hand forced on the nine-dash line.

Analysts say a large part of China’s strategy in the disputed waters rests on the ambiguity surrounding its claims. Beijing has never clarified exactly what the nine-dash line claim entails, apparently in hopes of maximizing its gains. It has also used its man-made islands in the South China Sea to bolster claims to EEZs of 200 nautical miles (370 km) and territorial seas of 12 nautical miles (22 km).

“The nine-dash line is really what’s at the heart of this case,” said Harry Krejsa, a Research Associate at the Center for a New American Security.

“The court wants to bring as much clarity as possible to the South China Sea disputes while also being strategic about its ability to strengthen international norms over the long run,” Krejsa said.

But a decision in favor of Manila, one nixing the nine-dash line, will undoubtably prompt a furious reaction from Beijing.

“The whole situation is probably going to get worse before it gets better, but strategically, the case for international law and norms are going to get stronger,” Krejsa said.

Under the nine-dash line, which constitutes approximately 80 percent of the South China Sea, Beijing has built what U.S. Pacific Command chief Adm. Harry Harris has dubbed “The Great Wall of Sand” — a series of man-made islands that Washington says have been militarized by China with infrastructure and equipment such as airfields and radar facilities.

The moves have stoked concern among the United States, which has no claims to the South China Sea, but which has been an advocate of freedom of navigation in the waters, through which $5 trillion in world trade passes each year. The Philippines, Vietnam, Malaysia, Taiwan and Brunei also have overlapping claims.

China says it has “historic rights” to the waters, islands and reefs it claims, and has recently produced a bevy of historical documents — including maps and testimony — as examples that it says support its position.

Maritime law experts, however, say such a position conflicts with international norms, including UNCLOS, which was adopted in 1982.

“The problem with the Chinese argument is that generally in international law … the later in time prevails, so if you have a law from 1980 and a law from 2016, the law from 2016 is the one that prevails if there’s anything that’s inconsistent,” the U.S. Naval War College’s Kraska said in an interview.

Article 62 of UNCLOS, Kraska added, already addresses historic rights.

“If a country has habitually fished in an area that then becomes another country’s EEZ, then (the former country) will go to that country and negotiate access to those historic fishing waters,” he said.

“China has never tried to do that.”

China has also ramped up its own charm offensive ahead of the ruling — one that has largely fallen flat, experts say — garnering the backing of more than 40 countries for its position on the dispute, the Chinese Foreign Ministry has claimed, though it has refused to release a list of these nations.

Kraska believes the ruling will severely undercut China’s legal and strategic position because it will legally isolate and enclose in enclaves most of China’s occupied features.

“Even if other states recognize China’s weak claim to historic title over the actual territorial features, the PCA will deny China the bonanza of maritime entitlements that its ambiguous claims imply,” Kraska wrote in the April analysis.

Perhaps ironically, the ruling could also prompt a proliferation of similar arbitration cases against China.

“Arbitration that is favorable to the Philippines shapes the cost calculus for the other countries, that they’re more likely to go to arbitration because they’re more likely to win,” Kraska said in an interview.

In a bid to reduce growing pressure ahead of the verdict, Chinese government-linked scholars have also drafted a 17,000-word commentary that attempts to explain China’s position on the South China Sea.

This commentary, published on the National Interest website, links imperialism, both from the West and Japan before and after World War II, as a key factor in preventing it from reclaiming the waters it had held since time immemorial.

Perhaps hoping to link its past victimization with what Beijing sees as current attempts by the U.S. to contain it, Chinese state-controlled media have called the case a U.S.-led ruse to fuel anti-Chinese sentiment and block the country’s “peaceful rise.”

The U.S. has conducted what it calls “freedom of navigation” operations near Chinese-held islands in the waters, prompting rejoinders from Beijing that Washington is, in fact, the party militarizing the region.

“The South China Sea issues are just an excuse for the U.S. to meddle in regional affairs and stir up tensions in a bid to isolate China,” the Communist Party-run People’s Daily newspaper said in a recent commentary.

The office of Democratic U.S. presidential contender Hillary Clinton, in her time as secretary of state, appeared to reinforce this stance in a diplomatic cable dated October 2010 and later released by WikiLeaks. That document, a conversation between Clinton and longtime confidant Sidney Blumenthal, appeared to reference a visit to Asia that Blumenthal referred to as a “trip building the de facto China containment alliance.”

Still, while other nations have built outposts in the South China Sea, Beijing has reclaimed more than 3,200 acres (1,280 hectares) of land over just two years, far surpassing the scale of the other claimants’ projects, according to an annual Pentagon report on China’s military strength released this month.

Security experts have said Beijing might retaliate against a ruling it views as negative by delineating an air defense identification zone over the South China Sea, as it did in 2013 over the East China Sea amid its fight with Tokyo over the Japanese-controlled Senkaku Islands, which are known as the Diaoyus in China.

“I think there will be an ADIZ this year and the excuse will be that the U.S. has militarized the region and that it hasn’t complied with Chinese requests to stay away from the artificial islands,” said Kraska.

Declaring an ADIZ will, however, be more of a symbol for China than a practical application, Kraska said.

“All it really does is buffer China’s sense of ownership,” he said. “It makes China feel like they are actually exercising some level of sovereignty, ‘one more slice of the salami.’ ”

More disconcerting, analysts say, would be an acceleration of efforts to fortify the Scarborough Shoal, which is effectively controlled by China and lies just 230 km off the Philippine coast.

Any outpost built there would not only put U.S. forces in the Philippines at risk, but would also be an endgame for China in its rush to consolidate control over the South China Sea, completing what some experts have called a “strategic triangle” for monitoring and controlling maritime activities there.

Post-ruling, friction will likely become the new normal in the area.

“You’ll see different claimants jockeying to get the most political mileage out of this ruling as they can, whether it’s China trying to demonstrate that this ruling doesn’t bind them at all or other countries trying to make a public relations push around China being an unhelpful and destabilizing force,” Krejsa said.

And although the odds of an outright war remain low, the larger fear is of a regional event spiraling out of control, such as an accidental clash at sea, an overzealous pilot flying too close to another, or a plane being shot down by a surface-to-air missile.

Still, said Krejsa, “You’re going to see more tensions and standoffs.”