South China Sea dispute rolls on with no resolution in sight

Mark Valencia says while all-out war over territorial disputes in the South China Sea is unlikely, tensions between China and the Philippines show no sign of easing following Manila's filing of its case to a UN panel

PUBLISHED : Tuesday, 08 April, 2014, 6:27pm
UPDATED : Wednesday, 09 April, 2014, 5:04am

Despite rising tension between China and the Philippines in the South China Sea and alarmists' warnings of conflagration, war is still well over the horizon - and is not inevitable. There may indeed be potential for miscalculation and violent incidents. But full-scale conventional war is unlikely. There are just too many negatives and too much to lose for all concerned.

It is true that the US-China competition seems to fit the "Thucydides trap" - the international relations theory that the dominant power and a rising power will inevitably clash. Make no mistake, China and the US are already "clashing" - over regional dominance and political influence as well as interpretations or reinterpretations of the world order and international law. But a full-blown conflict is hardly written in stone.

Both protagonists are preoccupied with other significant matters - China with its economic development, internal instability and burgeoning conflict with Japan in the East China Sea. The US is focused on its multiple ongoing international conflicts, that with Russia over Crimea being the latest deflating fiasco.

Moreover, neither are "ready" for war. China is not yet ready technologically for an all-out conflict; the US is at least two decades ahead militarily, although China is quickly catching up. The war-fatigued US public and military are not ready for war, either. The US is working very hard behind the scenes to discourage its allies from provoking China into the use of force and is thus unlikely to allow smaller countries - allies or not - to draw it into a wide regional conflict.

Further, there is really no fundamental US security interest at stake - other than pride of place and precedent. In this context, those that see weakness in recent US restraint should not and hopefully will not miscalculate.

The US often cites freedom of navigation as a "national interest" in the South China Sea but it well knows that China has never threatened freedom of commercial navigation and is highly unlikely to do so. The US-China incidents at sea and over the sea have stemmed from purposely provocative US intelligence and reconnaissance probes that China feels threaten its security.

China probably justifies its interference with petroleum exploration and fishing by other countries in areas it claims through reference to the Declaration on the Conduct of Parties in the South China Sea that it has signed with the Association of Southeast Asian Nations. Through it, the parties agree "to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability". This provision could, of course, be interpreted for and against China. But there are also International Court of Justice precedents that urge rival disputants to refrain from unilateral activities in disputed areas.

Moreover, in what it views as an exercise of self-restraint, China almost always uses civilian vessels to enforce what it perceives as its rights. And the Philippines, presumably under considerable pressure from the US, is demonstrating considerable restraint as well. However, without an effective military, it really does not have much choice if it wants to physically hold on to its claimed features.

The Philippines hopes its actions vis-à-vis China will be backed by the US. Last week, US Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel told the Senate's foreign relations committee that he noted China's "intimidating steps" towards the Philippines and said "there should be no doubt about the resolve of the United States".

Yes, the US will bluster and bluff. And it may well deploy more assets to the region and verbally and technologically back up its ally. Yes, the situation is becoming politically dangerous. There may be a rise in tension, and even a chill in Sino-US relations that involves a downturn in economic relations. But an incident - even a series of incidents - is not a war.

The Philippines' best hope now is UN arbitration, although this is a long shot. There are several possible outcomes, each with its own consequences. First, the panel must decide whether it has jurisdiction to hear the case. China's supporters maintain it does not and that the complaint involves errors of fact and issues excluded from the panel's purview - like boundary delimitation, links to questions of sovereignty over islands, claims to historical title and law enforcement activities.

Moreover, they argue that China has never claimed sovereignty over all the maritime space and waters within the "nine-dash U-shaped line" as alleged by the Philippines in its complaint.

China's supporters also contend that the Philippines has not exhausted its obligation to negotiate the issues bilaterally as stipulated in the mutually agreed declaration on conduct.

Of course, China claims none of this officially because it refuses to participate in the process. Nevertheless, the Philippine démarche tries to avoid all these obstacles and essentially argues that China's nine-dash line claim and enforcement thereof violate the UN Convention on the Law of the Sea, to which both are parties.

If the panel decides it does not have jurisdiction, some realists may conclude that international law is the arms of politics, and that it works in favour of the big powers. More importantly, the other Southeast Asian claimants - including Brunei, Malaysia, Vietnam and perhaps Indonesia - will be resigned to negotiating their overlapping claims with an ever more powerful China. And - like the Philippines - they will most likely reach out politically and even militarily to the US for protection.

On the other hand, if the panel decides it does have jurisdiction and goes on to rule against China's nine-dash line claim, it could be committing institutional suicide. China will not abide by the ruling, legal and political uncertainty will reign in the South China Sea, and violent incidents are likely to proliferate.

The authority and legitimacy of the dispute settlement mechanism and even the UN convention itself would be undermined. The "emperor" - in this case the tribunal that oversees the dispute settlement mechanism - would be shown to have no "clothes" - or teeth - and may be sidelined in future maritime cases.

So one can conclude that there is likely to be more tension, more incidents between China and other claimants and even between China and the US, but no war - not yet. Perhaps there will just be a slow descent into chaos, which is in no parties' interest.

Mark J. Valencia, currently attending the Boao Forum for Asia, is a visiting senior scholar at the National Institute for South China Sea Studies, Hainan