One year after the Philippines won recognition of its rights to disputed waters, China still does as it wishes – untouched by international law.
By Francesca Ross
China has emerged the winner of the latest round of the South China Sea dispute, just twelve months after the Hague arbitration panel ruled in favour of the Philippines. The battle is no longer tangled in legal process. It has moved to military, political, and economic shows of might.
The 2016 ruling on territorial rights in the disputed waters was “historic,” explained William Choong, Shangri-La Dialogue Senior Fellow for Asia-Pacific Security at the International Institute for Strategic Studies (IISS).
“The fact that it is historical does not say anything about strategic impacts,” he added. “It is a question of where raw power meets international law. International law is well and good but in an anarchical society international law only goes so far where there is a display of raw power.”
A new code of conduct for behaviour in the South China Sea is under discussion
Many of the ASEAN countries that also lay claim to South China Sea rights, such as Vietnam and Malaysia, have not gained much traction from the ruling by the United Nations’-mandated panel of judges. The only real progress in the region, Choong says, is towards a Code of Conduct.
Negotiations have begun on this new set of rules, agreed by all the users of the South China Sea, which will regulate behaviour. The problem is making sure this agreement is “worth the paper it is written on,” Choong underlined. There are multiple issues in agreeing such a document – some of geography, others of authority.
All parties “uphold using the framework of regional rules to manage and control disputes, to deepen practical maritime cooperation, to promote consultation on the code and jointly maintain the peace and stability of the South China Sea,” China’s foreign ministry has said.
Choong explained this process brought China to the table and let their diplomats show face as a moderate force in the region. The issue, he said, was “I do not know how ASEAN is going to draw up a code whose geographical scope will not overlap with China’s nine-dash line. I do not know how China will see this and it will most likely oppose any geographical mapping of the area the code will cover.”
An independent panel would need to be created to administrate internationally agreed rules
The other big issue for the application of any kind of international rules is who China will acknowledge can settle disagreements. An effective code of conduct will require an effective dispute resolution mechanism.
This panel would be able to offer remedy where countries take issue with the action of another. For example, the placement and output of oil rigs. Issues like this are regular flashpoints in the area and will need proper management. Vietnam recently cancelled military meetings with China over just such an issue.
The problem is that this would require China to recognise an external panel’s rulings and, if needed, accept an outsider’s reading of their rights to the waters. This does not fit with China’s record or previous positions on this issue. Beijing still officially rejects even the Hague Ruling.
This brings us to the assertion that, in this round, China has won. Choong explained, “American strategists love to talk about how the military outposts that China has built can be easily taken out of the equation but those comments are rather trite. For America to launch attacks on Mischief Reef or Fiery Cross would pretty much necessitate an all-out war between China and the United States – which is unthinkable.”
The American approach is to say, let us supply “Southeast Asian countries with more coastguard ships. Let us supply them with more capability to monitor their own coastline to give them more maritime domain awareness.” Choong said. “We are looking forward to any kind of strategy from the Trump administration – we have not seen much in recent months,” he added.
Southeast Asian nations will shape the next round of the dispute
This means the next move in the dispute will be decided by the nations of Southeast Asia themselves. Duterte has adopted an approach of rapprochement and taken trade and investment deals. Malaysia has also sought greater engagement with China and its money.
“The Philippines and China have reviewed their experience on the West Philippine [or South China] Sea issue, exchanged views on the current issues of concern to either side, and they have agreed that they will further discuss mutually acceptable approaches to deal with them,” said Duterte’s spokesman after one recent meeting.
Vietnam, on the other hand, is pushing back towards the United States. This has brought visits from US Naval ships and the relaxation of arms sales to the country in return. Vietnam still has close party linkages with China, and these remain, but it is taking a multi-directional approach to its diplomacy.
This is partly because, the “Vietnamese are psychologically more accustomed to confronting powers bigger than itself. In the span of a few decades Vietnam has defeated three big powers – the French, Uncle Sam and China. History is not a predictor of what happens in the future but the Vietnamese are self-assured when it comes to how they tackle a bigger power,” Choong explained. Vietnam’s neighbours do not share this bravery.
This is why China wins, even though it lost. Most of the ASEAN nations do not want to provoke the dragon in their backyard. International law has spoken and been ignored. The geopolitical game of chess being played in the South China Sea is one of power and influence. Vietnam refuses to be a pawn, China is the queen and the Philippines has already lost her most important piece.