Beijing likely to set its own course in South China Sea dispute with Philippines

Mark Valencia says predictions that China would lose prestige and influence by defying rulings of an international court are likely to be misplaced, and it may decide to carry on regardless

PUBLISHED : Tuesday, 05 January, 2016, 4:00pm
UPDATED : Friday, 20 May, 2016, 2:10pm

Last October, in a unanimous decision, the Permanent Court of Arbitration in the Hague announced that it has jurisdiction to hear seven of the Philippines’ 15 complaints in the dispute with China over islands in the South China Sea. Thus, the Philippines “won” the first round of its case. There is little dispute about this and, globally, Filipinos and supporters of its case against China celebrated. But this may turn out to be a Pyrrhic victory both for the Philippines and for stability and peace in the South China Sea and much of Southeast Asia. Political ripples emanating from the initial decision are likely to become waves as the process unfolds.

Indonesia has indicated it may file a similar complaint. Others may follow suit. As the case progresses, it will become ever more difficult for Southeast Asian countries and interested outside parties like Australia to remain neutral.

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Australia, Indonesia, Japan, Malaysia, Singapore, Thailand and Vietnam sent observers to the hearing, indicating their strong interest in its outcome. A US request to attend was rejected because it has never ratified the UN Convention on the Law of the Sea, the legal basis of the Philippines’ submission.

A second round of pleadings was held in November on the merits of the seven submissions, and on the question of jurisdiction. A decision on these issues is expected in mid-2016. The Philippines had until December 18 to submit further written responses to the court’s questions and China had until January 1 to comment. China refused to appear before the court, arguing it had no jurisdiction, and stated that as far as it was concerned, the initial “award” was “null and void”.

China’s supporters contended that the Philippines had not exhausted its obligation to negotiate the issues bilaterally, as stipulated in the mutually agreed Declaration on Conduct of the Parties in the South China Sea. This political document states that the “parties concerned undertake to resolve their territorial and jurisdictional disputes through negotiations by sovereign states directly concerned”. But the court found that the declaration does not preclude its jurisdiction. This means that the declaration – including its “self-restraint” provision – is essentially impotent. This finding is likely to further hinder efforts to reach agreement on a code of conduct.

If the court rules against China’s nine-dash line claim, Beijing is unlikely to abide by the ruling

Even with a majority of court “awards” in favour of the Philippines, several issues are likely to remain. If the court finds that China’s nine-dash line – which is at the core of the complaints – does not have any basis in international law, it could still rule that some of the features China claims are legal “islands” entitled to continental shelves and exclusive economic zones. Even if the court does not address this issue directly for all the features claimed by China, it can still make and pursue these claims.

Moreover, if it rules against China’s nine-dash line claim, Beijing is unlikely to abide by the ruling. Then, legal and political uncertainty will reign in the South China Sea, and violent incidents are likely to proliferate. The authority and legitimacy of the UN convention dispute settlement mechanism and even the law of the sea itself may be undermined.

In any case, China is likely to simply carry on with its construction on the features it occupies and may well “militarise” them despite repeated US warnings not to do so. China’s defiance of the international system and the US, and its military presence in the heart of the South China Sea, may intimidate the smaller littoral countries. This will then draw more physical US challenges in the form of so-called “freedom of navigation” operations like the muddled USS Lassen probe and perhaps the more recent B-52 aircraft overflight. And that, in turn, would sharpen the divide within Asean between supporters of the two powers. In a worst-case scenario, it could lead to conflict between the two – or even proxy wars or internal conflicts in the region. This has happened before, throughout history.

Some are clearly hoping that the US will ride in at the last minute and save the day. Perhaps it will – but don’t bet on it. And even if it does, Southeast Asian countries should be careful what they wish for. They may get stuck between a rock and a hard place.

The Philippines’ lead counsel, American Paul Reichler, believes that if China defies the court’s judgment it will “lose prestige and influence”. Indeed, in his – and many international lawyers’ preferred ideal world – there would be serious consequences for violating formal agreements like the UN Convention on the Law of the Sea – particularly if a court finds that is indeed what has occurred. Perhaps the world should work this way. But it does not; this view does not take into account both hard and soft power – particularly hard power. China may lose “prestige” among idealists and international lawyers – but, among realist government decision-makers, it will not lose political “influence” in the region. On the contrary, its enhanced assertiveness and ever-growing economic and military power is likely to continue to heavily influence its neighbours and other claimants.

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The reality is that the whole dispute is eventually likely to move back to bilateral negotiations between China and the other claimants. Nothing will have been finally and truly “won”. Indeed, all the case is likely to do is further aggravate China and bolster Beijing’s hardliners who view the international system as being used to constrain and contain China. And, as China becomes bigger and bolder, the claimants and other members of the Association of Southeast Asian Nations may suffer consequences – especially those who showed their pro-US hand early on. The only real eventual “winners” in this affair may well be the US law firm the Philippines has hired to represent it in this case.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China