Maritime disputes at APEC summit?

Ahead of President Xi Jinping's attendance at this year's Asia-Pacific Economic Cooperation (APEC) forum, set to be held on November 17-19 in Manila, China has asked the Philippines not to raise "contentious issues" - a possible reference to the ongoing territorial disputes in the South China Sea (SCS) - in order to ensure Xi's visit is "smooth, safe and successful."

In a recent meeting with his Philippine counterpart Albert del Rosario, Chinese Foreign Minister Wang Yi reportedly underscored Beijing's objection to any effort to bring the long-raging disputes to an international arena.

"They both agreed that APEC is an economic forum and it would be an improper venue to discuss political security issues," Philippine Department of Foreign Affairs spokesman Charles Jose said in a news conference, referring to the first high-level talks held by the neighboring countries since 2011.

Wang also met with Philippine President Benigno Aquino who pledged a warm welcome for China's leader Xi, despite Manila's sea feud with its giant Asian neighbor. Nevertheless, there are reports that activists are planning to hold protests over the issue during Xi's visit.

China's territorial claims

Tensions between Manila and Beijing have been rising for years over China's territorial claims and land reclamation activities in the SCS. Beijing claims most of the potentially energy-rich waters through which about $5 trillion in ship-borne trade passes every year, arguing that it is asserting its so-called "historic rights" to maritime resources in the area.

At the heart of the problem lie differing legal interpretations of the United Nations Convention on the Law of the Sea (UNCLOS). Maritime lawyers note the Chinese routinely outline the scope of their claims with reference to the so-called "nine-dashed line" which encompasses about 90 percent of the 3.5 million-square-kilometers SCS on Chinese maps.

The Philippines and the United States, in turn, accuse China of creating artificial islands in the disputed waters that could be used as airstrips or military installations. Vietnam, Malaysia, Brunei and Taiwan also have overlapping claims to the SCS, which have led to territorial disputes in the area.

This explains why Manila and also Tokyo - which is engaged in a dispute with Beijing in the East China Sea - welcomed the US' recent defiance of Beijing, when Washington sent a warship within 12 nautical miles of at least one of China's man-made islands in the Spratlys chain in order to test the principle of freedom of navigation in the disputed waters. More recently, two US strategic bombers flew near the artificial Chinese-built islands.

Legal challenge

China has been particularly upset by a case lodged in 2013 by the Philippines with an arbitration court in the Netherlands over the SCS.

In a legal setback for Beijing, the tribunal recently ruled that it has jurisdiction to hear seven of Manila's submissions under UNCLOS, and that China's decision not to participate did "not deprive the tribunal of jurisdiction." China, which says it will disregard any findings by the court, has for years insisted that disputes with rival claimants be handled bilaterally.

It's important to note, however, that Beijing has so far neither officially claimed that its artificial islands have 12-nautical-mile territorial limits around them, nor that the area within the "nine-dashed line" is all Chinese territorial waters.

"The Chinese government references international law (UNCLOS) in positive ways and speaks of violations or threats to its territorial sovereignty by US ships and other claimants in the SCS. But it does not define exactly what its legal claims in the SCS consist of. It is vague on these points. The lack of clarity is one major factor driving US concerns," Michael Swaine, an expert on China and East Asia security at the think tank Carnegie Endowment for International Peace, told DW.

Pressuring China to be more clear is a major factor behind both the Philippines’ case and US activities in the South China Sea. "Manila has not asked the court to rule on whose claims are right and whose are wrong. It has asked the judges to rule that the nine-dash line is not a claim at all as far as the law is concerned," said Gregory Poling, director of the Asia Maritime Transparency Initiative at the Center for Strategic and International Studies.

On the sidelines

In light of the heightened regional tensions, Steven Rood, The Asia Foundation's Country Representative for the Philippines, explains why Manila has agreed to keep the maritime row off upcoming summit's agenda.

"First, the dispute is a political one, while the APEC meeting is about economics. Second most APEC members are not affected by the issue, and so would not be in a position to discuss it," Rood told DW. APEC has 21 Pacific Rim member economies, including the United States, Australia, Mexico, Russia, China, Japan, South Korea, Vietnam, the Philippines, Indonesia and Canada.

But this is not to say that the sea feud issue won't be discussed during the summit. "It's the elephant in the room," Zachary Abuza, a Southeast Asia security expert and professor at the Washington-based National War College, told DW. "If it were just up the Philippines, they probably wouldn't do anything else to poke China in the eye. But I think it's clear that the US will raise the issue as part of an overall thrust about a norms and law-based international order that benefits everyone."

An important feature of APEC summits is a series of bilateral talks that leaders hold on the sidelines. In this context, analyst Rood points out that "it is certain that in the bilateral meeting between President Obama and President Aquino, the issue will be raised. And there is a further possibility that other leaders will discuss this issue, among themselves or with President Aquino," he added.

In fact, US State Department spokesman Mark Toner recently said that while the annual APEC gathering was typically about economic matters, the SCS issue would "likely come up on the sidelines" of the summit if it was not on the agenda itself.

Thawing relations?

But can the summit help ease tensions? Analyst Rood points out that while no formal bilateral meeting between President Xi and President Aquino has been announced, it is the custom for past, present, and future APEC hosts to sit next to each other in these events.

Thus President Aquino will sit with President Xi - since China hosted APEC last year - and with President Ollanta Humala of Peru, which is next year's host. "So, there will indeed be a chance for the two men to chat informally," said Rood.

Moreover, Foreign Affairs spokesman Jose said both parties agreed to resume foreign ministry consultations "to explore areas where we can move bilateral relations forward." The last such consultation took place in Beijing in 2013.

But despite the high-level visits by Wang and Xi, Sino-Philippine relations remain strained. In fact, China says it is up to the Philippines to mend the frayed ties, since it is Manila that has raised the SCS issue at The Hague-based Permanent Court of Arbitration.

The arbitration case against China in The Hague "is a knot that has impeded the improvement and development of Sino-Philippine relations," read a statement on the Chinese Foreign Ministry's website, according to Reuters. "We do not want this knot to become tighter and tighter, so that it even becomes a dead knot […] As for how to loosen or open the knot, (we'll) have to look at the Philippines."

Analyst Abuza argues the Chinese view the Philippine suit as a humiliation and the single greatest challenge to their assertion, as it opens the doors to potential other suits. "No country can challenge China in terms of military or coast guard in the South China Sea. But in terms of the rule of law, China is at a distinct disadvantage."

In fact, even Indonesia, which has thus far kept a low profile in the dispute, is considering taking legal steps. Since China's "nine-dashed line" also includes parts of the Indonesian-held Natuna islands, Jakarta could take China to the "International Criminal Court" if Beijing's claim was not resolved through dialogue, Indonesia's security chief Luhut Panjaitan told reporters this week.

Against this backdrop, experts say it is unlikely that interaction between Presidents Aquino and Xi, whether formal or informal, will improve bilateral ties.

"Given that there is an upcoming May 2016 presidential election in the Philippines, China may well feel that it should just wait to gauge the stance of the new president next year," said Rood. It is therefore unlikely that the upcoming meeting will produce any tangible results regarding the SCS disputes.