The Permanent Court of Arbitration (PCA) recently overwhelmingly ruled in favour of Manila regarding the dispute between China and the Philippines over sovereignty claims in the South China Sea (SCS). After urging China to respect the findings ahead of the official ruling on July 12, the UK’s response to the decision should be measured and pragmatic – any miscalculation could prove internecine to steadily-improving relations between London and Beijing. Policy implications, however, may be clearer-cut than expected.
On Tuesday morning, the PCA ruling found China’s claims to historic rights within its nine-dash line had no basis in international law. This comes three years after the Philippines initiated proceedings against the People’s Republic of China under Annex VII of the UN Convention on the Law of the Seas (UNCLOS). The Court stated that Beijing had violated the UNCLOS by causing environmental degradation through its construction of artificial islands and argued that China had infringed upon Philippine sovereign rights. After the statement from the tribunal was released, Beijing, consistent with rhetoric throughout the dispute, issued a strong rebuttal to the validity of the findings. China labelled the tribunal as “law-abusing”, calling the issues “ill-founded”.
Despite being heralded as a victory, as Oxford’s Dr. Antonios Tzanakopoulos states, the dispute in the case relates to matters of sovereignty and maritime delimitation. These two entities are beyond the stipulation of the UNCLOS. Furthermore, the tribunal only makes a limited contribution, inter alia, because China will ignore the decision and there exists no mechanism to enforce the judgments. Therefore, although the verdict from the tribunal was clear, the actual implications for China, the Philippines and the wider international community, are far less clear-cut.
What does this mean for the UK?
In November 2015, the UK formally requested the status of “neutral observer” in the dispute, a move characterised as a routine intervention in international maritime affairs. However, earlier this year both Hugo Swire, Minister of State at the Foreign Office, and former Prime Minister David Cameron warned China that it must abide by the outcome of international arbitration.
With the UK unquestionably involved in the events preceding the verdict, how the UK proceeds following the ruling may prove instrumental in the development of relations between London and Beijing. The position of the UK is known, and it has thus said all it needs to without justified pressure to say any more. By deliberately choosing not to reiterate that position, the challenge of how to minimise offence transforms into how to maximise a new-found opportunity. In response to the ruling, the UK needs to, and indeed should, do nothing. By doing nothing, it does everything it needs to. ‘Sometimes it’s what you don’t do that counts’ as the old saying goes.
Non-action as a form of action
There is an important concept in Chinese thought known as ‘wuwei’ or ‘non-action’. Perhaps best described in the Chinese canonical text the Daodejing, it states: “do that which consists in taking no action, and order will prevail.” For order to prevail between China and the UK on the South China Sea dispute, there are five key issues for the UK to consider, each validating why the UK’s response to the ruling should be one of ‘non-action’.
The first issue to consider is the lack of legal credibility to the ruling. The legal interpretation of the PCA, as a regime court, is perceived as more impartial than self-serving. Judgment-compliance of particular relevance for the UNCLOS were left deliberately ambiguous in an attempt to improve the likeliness of an eventual binding treaty. Given such murkiness in international law, and the fact China is almost certainly not going to adhere by any legal ruling, any comment by the UK would needlessly exacerbate bilateral tensions.
Secondly, the UK needs to tread carefully in demanding China adhere to UNCLOS decisions given its own disregard for certain procedures within the Convention. China has declared in accordance with the UNCLOS in 2006 that it will not accept any of the procedures provided for in section 2 of Part XV of the Convention. This is similar to the declaration of the UK that it “does not accept any of the procedures provided for in section 2 of Part XV of the Convention with respect to the categories of disputes.” It would thus be somewhat hypocritical for the UK to call upon China to adhere to a convention it doesn’t wholly accept.
Third, the UK needs to take Brexit into consideration. Although trade deals between the UK and China totalling more than £40bn were agreed during President Xi Jinping’s state visit to the UK last autumn, the Brexit result has knocked Chinese confidence in the ability of the UK to act as a broker for Sino-EU relations. In addition to this, uncharacteristic of the Chinese, President Xi Jinping & Foreign Minister Wang Yi went against the almost-sacred principle of ‘non-interference’ in the affairs of other nations during the run-up to the referendum, urging the UK to remain in the EU.
In light of criticism from the White House that London has been too accommodating towards Beijing, especially in regard to prioritising commercial interest over morality in its dealings with Beijing, the UK would do well to save this convoluted, ‘right to constructively criticise’ for a more potent time and do as much as it can to reiterate that a UK exit from the EU won’t tarnish trade relations.
Fourth, the UK needs to consider new leadership in both the Philippines and at home. Although the UK undoubtedly wishes to start relations with the Philippines’ new President Rodrigo Duterte on the right foot, the UK needs not worry too much about appeasing the new government in Manila. This is mainly due to the fact that Duterte himself has not only appeared to be lukewarm about taking a strong stance after the award was issued, but has been showing signs of looking to forge a path to compromise in an attempt to provide China with a face-saving option after an embarrassing result. Equally, with Theresa May sworn in as the new Prime Minister of the UK on Wednesday 13 July, this a chance for new leaders to get relations between their countries off to a good start, whilst concomitantly appeasing China in the process.
Finally, despite differences in their engagement with China, the propinquity between the UK and the US should also be considered. For one, the White House Press Secretary Josh Earnest said on Monday that with Theresa May as the next Prime Minister, President Barack Obama will be able to “advance” the special relationship between the two nations. Although advancement should be encouraged, London should not worry too much about not making further comment on the dispute for fear of further criticism from its ally.
Washington itself abandoned a trial after it lost the jurisdictional challenge in the International Court of Justice (ICJ) vs. Nicaragua in 1986. The US subsequently refused to comply with the final verdict and attempted to disrepute the decision. Thus, if the US were to attempt to call out the UK on its deliberate silence, it knows it could face a well-founded backlash.
Silence for progress
Any reality of a ‘golden era’ between the Middle and United Kingdoms requires calculated diplomacy from both parties on consequential issues such as the South China Sea ruling. If the UK does happen to make further comments which are ill-received in Beijing whilst China and the Philippines happen to resolve tensions between themselves — something which, according to a recent report, may be likely — the UK will be left in a difficult position.
The UK chose to involve itself in the proceedings beyond that of a spectator, and should do its best to remain consistent with the views of senior Ministers and the Prime Minister, or at least clarify its position if not. Although such consistency would usually be encouraged, when considering the key factors to this complex debate, the policy implications are clear: the UK has already made its position known and to go any further in inciting inevitable anger from an already-livid Beijing would prove completely internecine. By not making further comment, in effect offering Beijing a chance to save face, and seeking to move forward together under new leadership in London, both the UK and China can be better placed to reap mutual benefits.
