By: Ashley Townshend

While tensions continue to rise in the South China Sea, with steady military build-up by all sides, especially by China, a new pathway may be opening for peaceful resolution of the territorial disputes.

The Arbitral Tribunal at the Permanent Court of Arbitration will soon announce whether it has jurisdiction to rule on the Philippines’ case against China’s expansive maritime claims. China is expected to reject the court’s ruling, though it might eventually be compelled to soften its stance.

The decision, expected this month, marks the next stage in a bitter legal process that began in January 2013 when Manila resorted to international law to settle its maritime disputes with Beijing under the United Nations Convention on the Law of the Sea, or UNCLOS. Beijing immediately boycotted the proceedings, invoking its exemption to arbitration and refusing to submit formal documentation in defense of its claims. As positions hardened, China released a position paper on its objections while the United States, Japan, and Vietnam lent diplomatic support to the Philippines’ position.    

The crux of the Philippines’ case against China is a contention that Beijing’s “nine-dashed line” is not a legitimate basis for a maritime claim. In this way, the case has the potential to set a legal precedent for the entire region.

Engulfing almost all of the South China Sea, the nine-dashed line has come to signify China’s maximalist claim to “indisputable sovereignty” – a major cause of regional maritime tensions. The broad claim tramples over the Exclusive Economic Zones, or EEZs, of Brunei, Malaysia, Vietnam and the Philippines. All have repeatedly asked China to clarify its nature. While Beijing argues its sovereignty is premised on “historical rights,” there is no legal precedent for this in international maritime law—which Manila hopes the tribunal will confirm.

Another key element of the Philippines’ case is an accusation that China has illegally occupied eight maritime features in the South China Sea based on its illegitimate claim to historical rights. More contentious is Manila’s related charge that at least four features—Subi, McKennan, Gaven and Mischief Reefs—are actually “low-tide elevations” rather than rocks or islands, which means that Beijing cannot use them as a basis to claim large-scale maritime jurisdictions. Under Article 121 of UNCLOS, only natural islands sustaining human or economic activity can generate a 12-mile territorial sea and a 200-mile EEZ.

Rocks that are visible at high tide generate a territorial sea while low-tide elevations fully submerged in high water offer, at most, a 500-meter safety zone. Importantly, artificial expansion of any of these features does not alter their status in international law. A ruling in favor of Manila on any of these maritime features would undercut China’s claim to a nine-dashed line on the basis of EEZs extending from the eight features it occupies.

Most observers expect the tribunal to determine it has jurisdiction. The judges would then hear the merits of the case as early as November and announce their ruling by mid-2016. While full endorsement of Manila’s position is unlikely, a narrow ruling against China is a strong possibility.

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China’s claim: A map shows a nine-dash line stretching across the South China Sea.  Enlarge image