Post-Arbitration Scenarios for the South China Sea Disputes: Continuing Crises or Opportunities for US and ASEAN?


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When: Mar 11 2015 - 12:00pm until Mar 11 2015 - 1:30pm
Where: 1819 L St, NW, Washington, DC. Sixth Floor Conference Room

Post-Arbitration Scenarios for the South China Sea Disputes: Continuing Crises or Opportunities for US and ASEAN?

An Asia Pacific Foreign Policy and Defense Seminar featuring:

Jay L. Batongbacal

US-ASEAN Fulbright Initiative Fellow, East-West Center in Washington/

Director, Institute for Maritime Affairs and Law of the Sea, University of the Philippines Law Center

RADM (ret.) Mike McDevitt (Moderator/Commentator)

Senior Fellow, Center for Naval Analysis (CNA Corp.)

Post-Arbitration Scenarios for the South China Sea Disputes: Continuing Crises or Opportunities for US and ASEAN from East-West Center on Vimeo.

The arbitration launched by the Philippines to protect its maritime rights in the West Philippine Sea against China is the most important development in the South China Sea disputes with many potential repercussions for ASEAN. The US, historically allied with the Philippines and with long-standing maritime security interests in the region, has been drawn prominently into the disputes despite its standing policy of neutrality with respect to the competing claims. China, seeking regional pre-eminence and believing the Philippine action to be part of a grand US design, is responding strategically and on multiple fronts to fortify itself against any potential legal outcome.

But while much time has been spent discussing the preliminary questions of jurisdiction and substance of the Philippine claims, there has not been enough discussion of the possible legal outcomes, their practical implications, and the next steps. Jay Batongbacal outlined such potential outcomes, and used them as starting points for suggesting post-arbitration options that could from the basis of future US and ASEAN engagement over the SCS disputes. He identified four possible scenarios for the arbitration: no jurisdiction, merits not decided; exercise jurisdiction but not proceed to merits; exercise jurisdiction, grant some claims; and exercise jurisdiction, grant all claims. If the tribunal decided that it has no jurisdiction that means that they could not reach consent as to whether the subject matter was included under the limitations or exclusions of the arbitration and that the claims might in fact not even be well-founded in fact or law. If this was the case, the Philippines could simply try to bring their case forward again in a different case or procedure or negotiate with China to try and reach an agreement outside of a formal hearing. China, for its part, could choose to maintain the status quo, escalate/de-escalate its claims as it saw fit, or agree to negotiate with the Philippines. The Philippines and China would also face similar choices if the tribunal determined it had jurisdiction provided that UNCLOS was ratified but that they still found problems with the claims and/or the ability of the subject matter to be covered by permissible limitations or exclusions under UNCLOS.

If the third scenario, exercise jurisdiction and granting some claims, was carried out the Philippines might be able to have China's "9 dashed line" declared illegal provided it was found to be invalid under UNCLOS. However, claims linked to sovereignty would not be able to be acted upon under the current tribunal. Looking at the geography of the Philippines' claims, this means that there would be greater clarity in the North surrounding the Scarborough Shoal since it is encompassed by the "9 dashed line" but a maintaining of the status quo in the South around the Spratly/Kalayaan Islands. While China would have the same options as described in the previous two scenarios, the Philippines could split up its actions by geographical area. In the North it could unilaterally apply its EEZ or it could negotiate for delimitation and provisional access. In the South, it could try again in a different case or negotiate from a different legal position. The final scenario, exercising jurisdiction and granting all claims, would need innovative reasoning given the complexities of, in addition to the illegality of the "9 dashed line," actions would have to be taken regarding submerged features and rocks as well as resource exploitation and recognition of EEZ limits. Here both parties would best be served to negotiate.

After detailing the possible scenarios, Mr. Batongbacal outlined way that the United States and ASEAN could contribute to a peaceful resolution of not just the arbitration but regional disputes in general. Both could encourage and enable conflicting parties to settle the disputes fairly. The United States could maintain stability of the seas in case of escalation, while ASEAN could work on community building within its member nations to work towards a common policy on the South China Sea. Most importantly, neither the United States nor ASEAN could just sit by and let the conflicting parties pursue certain decisions that would threaten the stability of the region.

RADM Mike McDevitt moderated the event and shared his insights on the South China Sea disputes and arbitration. He reminded the audience that the arbitration will not cover sovereignty claims despite misconceptions that UNCLOS does in fact do so. He also pointed out that even if the tribunal ruled in the Philippines' favor its decision is unenforceable. Therefore, China could simply ignore the ruling and continue its current behavior or even escalate its claims, though it would be tried in the court of public opinion.

Jay L. Batongbacal is a lawyer from the Philippines with the degrees of Master of Marine Management and Doctor in the Science of Law, both from Dalhousie University in Canada. Since 1997, he has done diverse work in maritime affairs, including community based fisheries management, coastal resource management, marine environment protection, maritime boundaries, high seas fishing, offshore energy, seafaring, and shipping. He was legal advisor to the Philippine delegation that successfully pursued the Philippines’ claim to a continental shelf beyond 200 nautical miles in the Benham Rise Region before the Commission on the Limits of the Continental Shelf. He is also among the List of Experts on Marine Scientific Research for purposes of Special Arbitration under Annex VIII of the UNCLOS. Presently, he serves as an Assistant Professor at the University of the Philippines College of Law, and concurrently Director of the Institute for Maritime Affairs and Law of the Sea of the U.P. Law Center. His fellowship with the East-West Center is funded by the Bureau of Educational and Cultural Affairs of the US Department of State.

RADM Mike McDevitt has been at CNA, where he has also held the position of director of CNA Strategic Studies, since leaving active duty in 1997. During his Navy career, RADM McDevitt held four at-sea commands, including command of an aircraft carrier battle group. He was a Chief of Naval Operations Strategic Studies Group fellow at the Naval War College and was director of the East Asia Policy Office for the Secretary of Defense during the George H.W. Bush Administration. He also served for two years as the director for Strategy, War Plans and Policy (J-5) for US CINCPAC. RADM McDevitt concluded his 34-year active-duty career as the Commandant of the National War College in Washington, D.C.

Primary Contact Info:
Name: Sarah Batiuk
Phone: 202-327-9755