Dispute in the South China Sea: Interview with Dr. David Kinsella

On July 12 the Permanent Court of Arbitration in the Hague ruled in favor of the Philippines and against China in the long-running dispute over China’s efforts at land reclamation in the South China Sea. To get a better understanding of this issue, the Vanguard asked Dr. David Kinsella of the Hatfield School of Government a few questions on the topic.

Vanguard: What is the gravity of this sort of ruling, and what does it mean for similar claims made by China?

Kinsella: I’m not sure how to assess the gravity of the ruling, but it certainly was an unequivocal rejection of the Chinese position. If the ruling is taken as a precedent—which the Chinese government rejects, of course—then any other claims to uninhabitable rocks or reefs is called into question. That’s true whether the purpose of those claims is to build artificial islands, to claim a 12 nautical-mile territorial sea around them, or to claim much more expansive exclusive economic zones.

VG: Does international law have the capacity to ultimately compel China to correct course?

DK: Basically, no. The UN Convention on the Law of the Sea does not specify means for the enforcement of decisions by tribunals established to interpret and apply [UN Convention on the Law of the Sea] rules. If the UN Security Council were ever to consider Chinese noncompliance a threat to international peace and security, subject to Security Council enforcement action, then China, as a permanent member of the Council, would be in a position to veto any such decision.

VG: Do these rulings have any impact on other states that may not have otherwise intervened?

DK: If the U.S. or the Philippines, along with any other countries that oppose Chinese claims, want to assemble to impose some sort of sanction on China for its actions in the South China Sea, then the arbitral court’s ruling is likely to facilitate the creation of a larger coalition. The ruling doesn’t leave much room for other states to take a principled stand on the Chinese side of the dispute.

VG: China has increased its rate of reclamation of reefs and islands, does this new land create any obstacles to counterclaims?

DK: The Court addressed this issue, but (aside from the environmental implications) only to the extent that it judged China’s behavior as aggravating the ongoing dispute with Philippines while under arbitration. Still, because one reclamation effort is being undertaken on Mischief Reef, which the court clearly placed within on Philippines’ continental shelf and within its [Exclusive Economic Zone], any counterclaim by China to sovereignty over its constructed island or the sea around is likely to fail in any future legal deliberation. But it does create a fait accompli, and therefore a continuing flashpoint in the area.

VG: Does this ruling have any spillover impact on the Senkaku issue?

DK: Possibly, but China’s legal claim to the Senkaku Islands is of a different sort than its claims in the South China Sea. In the South China Sea, China asserted that its sovereignty has been historically exercised and recognized—like Canada’s over Hudson Bay—while the dispute over the Senkaku Islands has more to do with shifting possession before and after wars and the interpretation of treaties that followed those wars.

VG: Broadly speaking does this ruling speak to any shift in attitudes by international bodies toward China’s territorial claims?

DK: That’s hard to say. This is the only case concerning China that has come before this arbitral court, and I’d have to check what other international legal bodies may have weighed in on issues related to this one. Sorry, that’s not much of an answer.

To read the ruling you can visit pca-cpa.org/en/cases and look for PCA Case No. 2013-19. For more information on the Senkaku Island dispute, you can visit bbc.com/news/world-asia-pacific-11341139.