South China Sea Arbitration


On 12 July, a UN arbitral tribunal in The Hague will rule over a case submitted by the Philippines in 2013. Territorial disputes in the South China Sea are at issue: the Philippines want the tribunal to declare that Chinese territorial claims and expansive activities violate the UN Convention on the Law of the Sea (UNCLOS). They claim that Beijing tries to create facts regarding territorial claims through its land reclamation, intensified naval patrols and oil and gas exploration. China, which builds its claim to ‘historical rights’ on 2,000 year-old documents, meanwhile condemns what it calls an ‘abuse of international law’.

Interview with Thomas Eder, Research Associate at Mercator Institute for China Studies (MERICS) in Berlin.

China has announced that it will reject the tribunal’s decision. What does that mean for the efforts, including those of the German government, to better integrate China internationally?

Should China reject the arbitral award as expected, this would constitute a watershed moment: China is part of UNCLOS and has to implement decisions such as this one. The international community, including Germany, has to react if China doesn’t stick to the rules. The South China Sea dispute clearly shows that expectations regarding China’s integration into multilateral frameworks were overly optimistic.

China has demonstrated that it pursues its own regional agenda through initiatives such as „One Belt, One Road“ (OBOR) and the Asian Infrastructure Investment Bank (AIIB). Beijing’s “controlled aggression” in the South China Sea is a fundamental part of this strategy: China wants to be a “maritime power” in a very comprehensive sense. Its likely rejection of the arbitral award makes one thing very plain: China is not going to play by our rules, and Western states and alliances had better adjust their strategies.

How should Western states, those in the G7 and especially the German government, respond to this difficult situation?

The G7 has lately agreed on harsh wording regarding China’s behaviour in the South China Sea dispute. Should Germany and its partners pursue a consistent line here, this could potentially lead to policy change on the Chinese side. At the same time, the German government should still aim to act as an intermediary and de-escalate the situation. Despite all difficulties, it has to keep the door open for further talks with Beijing as long as possible. It is essential, that Berlin and others try to convince Beijing that its interests are better served by remaining within frameworks such as UNCLOS.

China still wants recognition as a responsible power and pillar of the international order. It can only shape certain aspects of the international order if it remains at the table, however. Such a line of argumentation could conceivably work with a view to the G20-summit in Hangzhou under the Chinese presidency this September. China may moderate its course on the South China Sea temporarily to make sure the summit becomes a success.

How will the regional situation develop in the future? Is there going to be further escalation?

In view of China’s progressively more assertive foreign policy, we have to expect that it will continue its controversial activities in the medium term. Tensions could rise should China build more artificial islands, expand fishing and oil and gas exploration in disputed areas, or station more military in the region. Beijing may very well declare an “Air Defence Identification Zone” to exert control over air traffic in the region. It will likely also confront other states‘ vessels more regularly, and potentially ram or detain them. It cannot be ruled out that China would even withdraw from UNCLOS entirely.

Other parties with interests in the region will view all this as provocation. The US will likely react with a massive diplomatic campaign against China and send its navy through the region more regularly, to reinforce its demand for comprehensive freedom of navigation. Other states in the region might feel that they should now quickly follow up and submit their own cases to law of the sea tribunals.

Let us get back to the arbitral award. What exactly will be decided there? Can the tribunal force China to give up its claims?

The Philippines did not ask the tribunal to draw any borders, but rather to interpret UNCLOS, which China has ratified. Manila has asked the arbitrators for definitions: are maritime features in the disputed area “islands”, “rocks” or “low-tide elevations”? Should the Taiwanese-held Itu Aba be legally considered an “island”, for example, claims to large surrounding maritime areas would result. China may only be able to make claims via this route – which in turn would constitute a further test for cross-straits relations.

The Philippines have also challenged the “nine-dash line”, a central issue for China. This line circumscribes the vast maritime area to the South and East of the Chinese province of Hainan, to which Beijing purports to have a historic claim on. Should the tribunal decide in Manila’s favour on this point, China’s stance will harden further. 

Are you saying that with regard to a resolution of the conflict nothing will change?

The arbitral award can and will not end the conflict. What is certain, however, is that if the crisis deepens, a regional problem can quickly become a global one. Regular confrontations between the parties to the conflict threaten crucial global trade routes. It is therefore all the more important that, among others, the German government seeks to moderate all parties’ actions. Should China escalate the situation further, however, the G20 summit in Hangzhou could be the right stage for G7 members to publicly voice their shared criticism.

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