Author: Malcolm Cook
APPS Policy Forum, 5 August 2016
The Philippines may have won a legal victory over China, but will it be enough to change the game, Malcolm Cook asks.
Last November, Philippine Foreign Secretary Albert Del Rosario commenced his closing remarks for the case filed by his country against China under the United Nations Convention on the Law of the Sea (UNCLOS) by reaffirming the core principle of a rule-based global and regional order, international law, and the rationale behind the Philippines decision to exercise its legal rights.
“There are those who think the rule of law in international relations does not apply to great powers. We reject that view. International law is the great equaliser among states. It allows small countries to stand on an equal footing with more powerful states. Those who think ‘might makes right’ have it backwards. It is exactly the opposite, in that right makes might.”
Five aspects of the Arbitration Tribunal’s ruling on this landmark case issued on 12 July enhance its ability to ‘make right might’ in the South China Sea.
Firstly, Article 4 of the 2002 ASEAN-China Declaration on Conduct of Parties in the South China Sea requires that, “The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognised principles of international law, including the 1982 UN Convention on the Law of the Sea”. The ruling has helped clarify what is in accordance with UNCLOS and what is not, and, hence, the legal basis for these consultations and negotiations.
Secondly, the unanimous ruling comprehensively and unambiguously upheld the Philippine case filed in January 2013, denying China’s historic rights claims to over 80 per cent of the South China Sea and the Philippine exclusive economic zone within this sea. It is clear that right is on the side of the Philippines and not China.
Thirdly, it provides legal justification for the maritime rights claims against China of Indonesia, Malaysia and Brunei, and for Vietnam, its maritime rights claims against China in the Spratly Islands. These four littoral states are free-riding beneficiaries of the ruling.
Fourth, by determining that China has no right under UNCLOS to claim any exclusive economic zone overlaps with the Philippines, Malaysia, Indonesia and Brunei, the ruling minimises the scope of the disputes with legal validity that any future ASEAN-China Code of Conduct in the South China Sea would cover.
And fifth, the three major powers in East Asia outside China – the US, Japan andIndia, – have supported making right might by noting that China and the Philippines are bound by law to respect the ruling, as have Australia and New Zealand.
China’s vitriolic rejection of the case, the Tribunal, the presiding justices, and the ruling clearly sets up a test of right versus might. Chinese statements as to the ruling’s non-enforceability, China’s economic importance to Southeast Asian economies, and that China is a bigger and more powerful state are simply references to its comparative might and why this should matter more than what is lawful and right. The same goes for China’s insistence that any recommencement of bilateral talks with the Philippines must ignore the 12 July ruling.
The initial reactions by the new Duterte administration run the risk of proving Del Rosario wrong in his own homeland. Officially, the Philippines only “strongly affirms and respects the outcome of the case before the Permanent Court of Arbitration as an important contribution to the ongoing efforts to pursue a peaceful resolution and management of our disputes.” The new stand-in Foreign Secretary, Perfecto Yasay, muddied the waters further by informing journalists on 27 July that, “the legal basis will now have to give way to the diplomatic processes that we have to pursue precisely for the peaceful resolution of this dispute.”
Vietnam has noted that the ruling is binding on China and the Philippines. Malaysia and Indonesia did not mention the ruling or its effects on their disputes with China in their initial responses. Brunei has remained silent and the joint statement by the ASEAN foreign ministers released on 25 July made no mention of the ruling. Hopefully, these initial reactions from the biggest beneficiaries of the ruling are holding ones while the parties absorb the 497-page judgement and its clear benefits to their interests in the South China Sea.
Conversely, if these preliminary responses are in fact early signs of these states and ASEAN choosing to kowtow to China, by ignoring the ruling and its affirmation of their sovereign interests, then ‘might will make right’.
Such a course of action will see the regional order become accepting of unlawful activities and more unequal by dint of the actions of those that will suffer the most from this inequality and these unlawful activities. As China grows mightier and more confident, such a precedent will only hurt Southeast Asian states more. The 12 July ruling is a game-changer for Southeast Asia and China. The question that remains to be answered is whether it will change in favour of Southeast Asia or China.
Dr Malcolm Cook is a Senior Fellow at ISEAS-Yusof Ishak Institute in Singapore. The article was originally published on APPS Policy Forum at http://www.policyforum.net/right-versus-might-south-china-sea/.
Official positions and statements: https://seasresearch.wordpress.com/category/official-positions-and-legal-instruments/arbitration-between-the-republic-of-the-philippines-and-the-peoples-republic-of-china/
Facts on the ground and on the waters: https://seasresearch.wordpress.com/category/south-china-sea-facts-on-the-ground-and-on-the-waters/