Jerome A. Cohen. What might be the end game of the South China Sea arbitration?

May 25, 2016

As the result of the arbitration case filed by the Philippines government against China on South China Sea questions is imminent, people are wondering how Beijing will react and what might happen next. I have offered the beginning of an answer in the speech I gave to the April 14 Soochow University comprehensive conference in Taipei on the issues involved (video below; link here).

My hope, of course, is that at some point after the decision is announced, the parties will resume negotiations on the basis of the tribunal’s decision concerning the fifteen or so issues before it. To save China’s face, there would be no need for explicit reference to the arbitration in any agreement that might emerge. There may be a fairly long period before the PRC decides to negotiate on the basis of the arbitration decision.

In the interim other claimants may bring their own arbitrations against China on similar or related issues. Each arbitration tribunal can render its own independent decision on the jurisdiction and the merits.

Can people imagine how things might look to China and the world, for example, if Vietnam, Malaysia and Indonesia each brought separate suits against China seeking to confirm the Philippine tribunal’s invalidation of the “9-dash line” and if in each case the five experts, who might be totally different from the arbitrators in each of the other proceedings, arrived at the same decision as the Philippine tribunal? The same thing might happen regarding the issue of whether any of the islands in question is entitled to an Exclusive Economic  Zone and continental shelf.

I like the Chinese phrase “xuyao yige guocheng” 需要一个过程 (everything requires a process, i.e., Rome wasn’t built in a day). During this period the other claimants might seek to use their arbitrations to obtain orders against China to cease their questionable “reclamations” pending the outcome of each case.

Of course, since my April 14 speech the Philippines has elected a new president, whose attitude and policy toward China are as yet unclear. It is rumored that, if no arbitration decision has been rendered before he takes office July 1, President Duterte might seek to negotiate a settlement with China and then withdraw the request for arbitration before the decision is announced, saving China’s face.

Read more and watch the video here.