Dr. Renato de Castro, Trustee and Convenor of the National Security and East Asian Affairs Program, Stratbase ADR Institute
On July 12, 2016, the Permanent Court of Arbitration (PCA) finally came out with its ruling on the case between the Philippines and China over the South China Sea dispute.
This historic ruling rejected the historical claims and arguments of China defending the legal status of its structures in the Spratlys and supports the establishment of a Code of Conduct (COC) that is legally binding and consistent with the 1982 United Nations Convention on Law of the Sea (UNCLOS). The finalization a COC that is meaningful and legally binding in international law can no longer be delayed establishing maritime security and safety in Southeast Asia.
Moreover, the PCA ruling represented a sweeping legal victory for the Philippines and fundamentally could have altered the international legal and potentially the geopolitics of the South China Sea. No wonder most Filipinos were jubilant that their small country won an overwhelming legal victory against an emergent power bent of expanding into their country’s vast exclusive economic zone (EEZ).
The Philippine government’s reaction, however, was sober with then Philippine Foreign Secretary Perfecto Yasay showing a gloomy face while announcing the administration’s unenthusiastic reaction to the ruling. His subdued response to the award reflected the Duterte administration’s foreign policy goal of maximizing the Philippines’ economic and trade ties with China by normalizing Sino-Philippine diplomatic relations.
The Philippines’ sweeping legal victory in the South China Sea case, however, would create political complications in its overarching goal. The administration’s foreign policy gambit was to resolve this problem by seeking direct talks with China. In the process, it expressed its willingness to set aside the UNCLOS ruling in exchange for the normalization of Sino-Philippine relations.
Before going to Laos for the Association of Southeast Asian Nations’ summit meeting, President Rodrigo Duterte announced that the July 12, 2016 UNCLOS ruling is a bilateral matter between the Philippines and China and is not a matter for ASEAN. Pleased by the decision to sideline the ruling, China lifted its restriction on the importation of Philippine fruits that had been in place since the 2012 Scarborough Shoal stand-off and expressed interest in increasing its importation of agricultural and aqua cultural products.
Regional implication of the ruling
Despite the Philippines’ and China’s attempts to render the July 12, 2016 award as a bilateral matter, the ruling on the invalidity of China’s nine-dashed line pushed other stakeholders to seek more active participation in this maritime dispute.
The ruling and Beijing’s decision to ignore it gave these countries an idea on how China will behave as a great power. It also provided some states with the legal framework and rationale to protect freedom of navigation in the important sea lane and the rules-based international order against China’s maritime expansion and blatant disregard of international law.
Aware that international law is on their side, these countries cooperated, which could be viewed as a joint effort to defend the rules-based order against a revision power bent on asserting that might as right. The ruling facilitated negotiations among stakeholders who supported it and eventually created a strong incentive for cooperation to enforce the ruling despite China’s efforts to render it as little more than a piece of trash. These are states that share the common objective of preventing the South China Sea from becoming a Chinese lake that will hamper the freedom of navigation in this important waterway.
In November 2017, Australia, India, Japan and the United States revived the Quadrilateral Security Dialogue (Quad), with the goal of challenging China’s expansive claim in the South China Sea while protecting their own economic ties with China. These four countries formed the original Quad in 2007. Its goal had been to provide a platform for these four Indo-Pacific states to exchange views on regional security issues with a special focus on the rise of China and its implication on Asian Security.
Unfortunately, the Quad experienced a premature and sudden death when Kevin Rudd-led Australia succumbed to Chinese diplomatic pressure to withdraw from the association and when the Indian government tried to earn Chinese goodwill as it kept Japan out of its annual bilateral naval exercise with the U.S.
These four countries revived the Quad in light of China’s expansion in the South China Sea marked by its increasing assertiveness of land reclamation and its decision to ignore the July 12, 2016 UNCLOS ruling. These four countries supported the ruling by calling for compliance by the parties involved, emphasizing the freedom of navigation, and extending efforts to strengthen security cooperation with their East and Southeast Asian security partners.
After their November 2017 meeting in Manila, Australia and Japan separately called for “rules-based order” and respect for “international law” in the sea. Later in January 2018, India declared that it was committed to working together with ASEAN on maritime matters. This showed that while all these states are concerned about China’s expansion and disregard of international law, they still have different strategic geography, threat perception and the nature of their bilateral relations with China vary among the four powers.
The revival of the Quad is the first multilateral pushback after China rejected the July 12 UNCLOS award to the Philippines.
Despite some differences, these four countries are bound by a common view that the current balance of power is changing and the rules-based order is coming under increasing strain by China’s emergence as a great power. They plan to use the Quad as a useful platform to share their respective assessment of Chinese capabilities, intentions and formulate ways of dealing with them.
They can discuss maritime security in the light of existing cooperation among their navies, the need to ensure the freedom of navigation, strengthening the rule of law in maritime disputes, humanitarian assistance and disaster relief, energy security, regional capacity-building, and finally an alternative regional connectivity initiative to China’s One Belt One Road Initiative.
They can also institutionalize the Quad so that they can better coordinate their policies and pursue broader collaboration with smaller powers that are threatened by China’s expansion in the South China Sea like Vietnam, Indonesia and the Philippines. In the process, they can help establish a free, open and inclusive Indo-Pacific region.
Protest with allies
The continuing stance of appeasement of the Philippine government has only emboldened more aggressive activities from China with the building of more military structures in the South China Sea. The historic arbitral ruling has nullified the nine-dash claims and supports the finalization of a meaningful and legally binding COC to preserve maritime security in the region.
In the context of law and order, and international cooperation, the Philippine government should shift from its current stance and initiate multilateral and bilateral engagements with allies to protest and push back against the militarization of the South China Sea.
As a people, we can appeal to our officials not to shelve the arbitral ruling and continue to engage the international community to be our allies in strongly protesting island building and particularly the militarization of the South China Sea in the context of preserving peace and prosperity.
Image Source: philstar.com