Ruling on South China Sea Nears in a Case Beijing Has Tried to Ignore By JANE PERLEZ in The NY Times, July 7, 2016

BEIJING — Five judges and legal scholars from around the world presided over a hearing last fall in an elegant, chandeliered room in The Hague. Arranged before them on one side of the chamber were lawyers for thePhilippines, armed with laptop computers and notepads.
On the other side were three empty chairs.
For more than three years, China has refused to participate in the proceedings of an international tribunal considering a challenge to its expansive claims in the South China Sea, arguing that the panel has no jurisdiction to rule on the dispute with the Philippines.
But with a decision scheduled to be announced next week, Beijing seems to be getting nervous. In a show of strength, it kicked off a week of naval exercises in the South China Sea on Tuesday near the disputed Paracel Islands, where the Chinese military has installed surface-to-air missiles.
And in recent months, it has mounted an arduous campaign outside the courtroom to rebut the Philippines and undermine the tribunal, enlisting countries from Russia to Togo to support its claim to waters that include vital trade routes and may hold oil and other natural resources.
The flurry of activity is a sign of how much is at stake in what was once an obscure legal case before an obscure arbitration panel. The outcome could alter the dynamics of the South China Sea conflict, shifting it from a race to establish physical dominance over the waters to a conspicuous test of Beijing’s respect for international law and multilateral institutions.
China has pulled ahead in the physical race, dredging sand to build one island after another over the objections of its neighbors and the United States, and equipping many of the islands with airstrips and radar. But if the tribunal rules in favor of the Philippines on key issues, it could put President Xi Jinping of China on the defensive — or, some worry, push him into a corner.
“This is a matter of wider significance than the South China Sea,” said Bilahari Kausikan, a Singaporean ambassador at large, noting that China has signed the United Nations Convention on the Law of the Sea, which is the basis of the Philippine complaint and the tribunal’s deliberations.
“The importance of the issue is whether international rules will be obeyed,” Mr. Kausikan said. China, he added, “cannot pick and choose which rules to follow or only comply when convenient.”
Sensing an opportunity, the Obama administration has begun a diplomatic push of its own, backing the tribunal and persuading allies to speak out for a “rules-based order at sea” and the use of international law to settle territorial disputes.
Neither Washington nor Beijing paid much attention when the Philippine foreign secretary, Albert del Rosario, began the case before the Permanent Court of Arbitration in 2013, not long after China wrested control of an atoll known as Scarborough Shoal from the Philippines.
The State Department’s senior diplomat for East Asia, Daniel R. Russel, has said he was unaware of the Philippine case at the time. The Chinese leadership quickly dismissed the tribunal without extensive consultation with the foreign policy establishment, several Chinese scholars said.
Beijing’s position has not changed. Because the sovereignty of scattered reefs, rocks and islands in the South China Sea is in dispute, it argues, the tribunal cannot rule on competing claims to the waters surrounding them. The Convention on the Law of the Sea says nothing about the sovereignty of land.
But the Philippines has been careful to frame its complaint in a way that sidesteps the question of who has sovereignty over the islands and reefs.
For example, it has asked the tribunal to declare that nine specific reefs and rocks, including some that China has built into artificial islands, are too small to be used to assert economic rights to the waters around them, regardless of who controls them.
The Convention on the Law of the Sea allows a nation to exercise sovereignty over waters up to 12 nautical miles from its coast, and it grants economic rights over waters on a nation’s continental shelf and to 200 nautical miles from its coast. But the treaty says reefs that are entirely submerged at high tide and artificial islands cannot be used to justify any maritime rights.
Philippine officials have asked the tribunal to find that China has violated the treaty by building islands in the Philippines’ economic waters, interfering with its fishermen, endangering its ships and damaging the marine environment.
The Philippines’ most sweeping demand is for the tribunal to reject China’s claim to sovereignty over waters within a “nine-dash line” that encircles almost all of the South China Sea.
China seeks to justify the nine-dash line by citing what it calls historical evidence, including maps published in the 1940s and ’50s that show the dashes. But it has never drawn a continuous line clearly marking its claim, nor has it been specific about what rights it is asserting in the area.
Critics say the Chinese government gave up any special claim to the sea when it signed the United Nations treaty in 1996, during a period when it sought respectability on the global stage.
Now, Beijing may believe it has enough clout to ignore the treaty. It has labeled the arbitration court a “law-abusing tribunal” and its proceedings a “farce.” Chinese diplomats have suggested that the government may even renounce the treaty.
“We will not accept it or recognize it,” a Foreign Ministry spokesman, Lu Kang, said of the coming ruling.
That position has made some in China uncomfortable, including foreign policy experts who have privately criticized the government’s position, saying that China has ceded the moral high ground in its rivalry with the United States.
The United States signed the United Nations treaty but never ratified it.
The Obama administration has struggled to deter Beijing from building islands and military outposts in the South China Sea, with increased naval patrols and stronger alliances in the region having little effect.
But it concluded last year that the tribunal case presented an opening to push back in a different way.
When President Park Geun-hye of South Korea visited Washington in October,President Obama said he expected Seoul to speak out on the need for China to “abide by international laws and rules.”
Mr. Russel, the assistant secretary of state for East Asia, was sent to Germany, where he made the case at a prominent public policy school in Berlin.
“The Chinese are fond of saying that the Pacific is big enough for both of us,” he told the audience. “What that does not mean is that they can draw a line in the center of the Pacific and say, ‘You stay on the east, and we’ll have control over everything west of the nine-dash line.’ That’s unacceptable.”
The administration also persuaded the Group of 7 nations to issue two joint statements on the South China Sea, drawing a complaint from Beijing that the group should stick to economic policy. A State Department official, Robert Harris, even traveled to landlocked Laos to explain the Philippine case.
China’s Foreign Ministry says that dozens of countries have endorsed its position, and reports about foreign politicians denouncing the tribunal appear in the state-run news media almost daily. But Beijing has adopted a broad interpretation of what it means to have won over a country. Russia, for example, agrees that the tribunal should not resolve the dispute, but it has been silent on the Chinese buildup, in part because of its close relationship with Vietnam, which also claims part of the sea.
At a contentious meeting it hosted last month, China pressured the 10-member Association of Southeast Asian Nations not to issue a joint statement on the subject. (In a fit of pique, Malaysia leaked the draft statement anyway.)
The new president of the Philippines, Rodrigo Duterte, who favors closer ties with China than his predecessor, said Tuesday that he was ready to open talks on maritime cooperation.
But it may be difficult for President Xi to back down. He has used his defense of China’s territorial claims to fan nationalist sentiment, bolstering the ruling Communist Party, and to strengthen his authority over the Chinese military.
Some analysts have suggested that he might respond to a ruling against China by moving even more aggressively in the South China Sea and taking steps to transform Scarborough Shoal into an artificial island.
Doing so would give Beijing its first outpost on the eastern side of the sea, more than 400 nautical miles from the Chinese island province of Hainan and just 120 nautical miles from the Philippine coast.
Paul S. Reichler, the Washington lawyer retained by the Philippines as chief counsel in the case, said that if China refused to accept the tribunal’s ruling, other countries would line up against it.
“China’s choice would be to reach an accommodation, or embitter its neighbors and endure a prolonged period of chaos and instability in the region,” he said. www.nytimes.com/2016/07/07/world/asia/china-hague-philippines-spratlys.html?ref=asia