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asia policy
at the general level of principles and avoid taking clear sides. 5 Similar to
other external stakeholders, the EU does not have a stance on territorial
sovereignty in the South China Sea. At the same time, the European
choice has been to emphasize international law without stating clearly
which elements of UNCLOS or other texts best apply to the situation. This
explains, for example, why the EU has refrained from openly supporting
the Philippines in its decision to bring a case to the Permanent Court of
Arbitration; when the court declared it had jurisdiction and competence
over most of the elements raised by the Philippines, the EU did not make a
statement. This issue has the potential, however, to force the EU to become a
more active player in the South China Sea equation.
An Approach Centered on the International Law of the Sea
Indeed, the future of Europe’s approach to security in the South China
Sea is increasingly tied to the outcome of the ongoing case at the Permanent
Court of Arbitration. Europe’s self-image as a normative power defending
an international order based on the rule of law could be seriously eroded if
the ruling of the Permanent Court of Arbitration were ignored by China in
a context of European silence or inaction. As a result, since 2014, the policy
debate in Europe regarding freedom of navigation in the South China Sea
has focused on the language of the statement Europe would release if the
court were to issue a decision favorable to the Philippines. This is happening
in the context of the drafting of the “Global Strategy for Foreign and Security
Policy,” the EU’s next foreign policy guideline, which will be released in June
2016 after an ongoing review initiated by the new high representative for
common foreign and security policy, Federica Mogherini. One of the goals
of the review is to ensure a constructive role for Europe in Asian security
affairs and engage with Asian partners beyond trade and investment.
The procedure at the Permanent Court of Arbitration clearly has the
potential of forcing Europe to clarify and specify its approach centered on
international law. Depending on the final ruling, Europe may face difficult
diplomatic choices. What if the court invalidates in unequivocal language
the notion that China’s nine-dash line has a foundation in international
law? How can Europe help enforce a rules-based international order if
the court states clearly that some of the Chinese artificial islands are
5 Matthew Tempest, “Mogherini Warns Against Intimidation in the South China Sea,” EurActiv with
the Agence France-Presse, November 6, 2015 u http://www.euractiv.com/sections/global-europe/
mogherini-warns-against-intimidation-south-china-sea-spat-319267.
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