South China Sea ruling: Verdict means precious little if parties don't respect it, actors don't enforce it

Pedestrians pass a military propaganda poster on a street in Shanghai.
Pedestrians pass a military propaganda poster on a street in Shanghai.PHOTO: AFP

The tribunal ruling clarifies issues relating to claims, but next steps for China, the Philippines, Asean, and the US, need to be calibrated

On July 12, the arbitral tribunal adjudicating the Philippines' South China Sea case against China ruled overwhelmingly in favour of Manila, determining that the extent of several major elements of Beijing's claim and its efforts to enforce it were unlawful. Though the verdict goes a long way in clarifying aspects of the South China Sea dispute, its implications are less clear.

By any measure, the tribunal's ruling overwhelmingly - though not fully - favoured the Philippines on several counts.

First, it found that China's claims to historic rights with its nine-dash line had no basis in international law.

Second, it sided with the Philippines on most of the features in the Spratlys that China claims, finding that these were rocks rather than islands and that they were thus only entitled to 12 nautical miles (nm) of territorial seas, not the 200 nm of exclusive economic zones (EEZs) or continental shelves of islands. This effectively limits Beijing's expansive claims to just the disputed features and the territorial seas they generate.

Third, it found that Beijing had violated its obligations under the United Nations Convention on the Law of the Sea (UNCLOS) by causing widespread environmental destruction through its construction of artificial islands and infringing on Philippine sovereign rights by interfering with fishing and petroleum exploration.

While this does go a long way in clarifying some contentious issues related to the South China Sea, the implications of the ruling are less clear.

China and the Philippines are most directly affected as they are the only two countries legally bound by the tribunal's ruling. For Beijing, though it has already dismissed the ruling, it has a range of options of how it will act in the face of a sweeping rebuke of its position. China could take assertive steps to make its stance clear, including increasing its naval and/or coast guard presence in disputed areas or deploying advanced military assets to the Spratly Islands.

But there are also incentives for Beijing to exercise restraint even if it refuses to accept the ruling, including exploring negotiations with the new Philippine government and minimising tensions abroad ahead of the G-20 Summit it is hosting in early September. Given this, the calibration of China's moves for the remainder of 2016 will be interesting to watch.

 

How the Philippines reacts is equally unclear. Though Manila filed the case against China in 2013 under then-President Benigno Aquino III, his newly inaugurated successor Rodrigo Duterte has initially signalled a more conciliatory approach towards Beijing. How that plays out following the verdict though remains to be seen. On the one hand, the clarity that the ruling offers, combined with Manila's choice not to "taunt or flaunt" its victory as Mr Duterte put it, may pave the way for both sides to enter into negotiations or even set aside disputes and focus more on economic cooperation in other areas. But on the other hand, the ruling on specific features also sets certain parameters and limits the extent to which the Duterte administration can pursue efforts like joint development with China in the South China Sea.

The ruling also affects other parties beyond just China and the Philippines. Its findings - such as the clarity on definitions of islands and rocks or the illegality of the nine-dash line - have implications for other South China Sea claimants.

On the former, for instance, the tribunal's ruling on the status of Itu Aba, the largest feature in the Spratlys, as a rock rather than an island, has already drawn a strong denunciation from Taiwan.

On the later, other coastal states in the South China Sea like Malaysia and Indonesia, which have publicly protested China's nine-dash line and intrusions into their waters, now also have clearer legal backing for their grievances. What they choose to do with that clarity, though, runs the gamut. Some may respond more boldly to Chinese encroachments, while others could still be hesitant to raise the stakes with Beijing. A few may even follow in Manila's footsteps and take Beijing to court.

Beyond the countries with direct claims in the South China Sea, the ruling also has implications for the region and the world more generally. Some Asian countries as well as other concerned actors have made clear their interest in seeing any disputes along this strategic waterway - and the region more generally - resolved peacefully and lawfully rather than through the use of force, and ensuring that basic principles like the freedom of navigation and overflight are protected. Though the verdict has been widely hailed as a victory for these principles, those same countries that extolled the value of the so-called rules-based international order now need to convince China to abide by it or at least find some kind of face-saving way out while also preserving their broader relationships with Beijing. That is a delicate balance which different states will want to walk differently.

How this shapes out, then, is far from certain. In addition to the unilateral post-verdict statements we have seen coming out of various capitals, we are likely to see a broader diplomatic campaign by some states in bilateral meetings as well as regional and international fora in support of the verdict, with a few laggards attempting to resist.

An early test of this will come at the next round of Asean summitry to take place in Laos later this month. Following the disarray at the Asean-China Special Foreign Ministers' Meeting in Kunming last month, all eyes will be on whether regional grouping can at least adopt a joint communique with basic language in support of the principles that undergird the verdict.

More broadly, the key for Asean for the rest of 2016, which is also the 25th anniversary of the establishment of its dialogue partnership with China, is to balance managing the South China Sea issue with making progress with Beijing on a number of other important issues. The role of Singapore, which is this year's Asean-China country coordinator, will be critical in this effort.

Diplomacy will likely need to be backed up by actions, whether they be regular demonstrations of presence by capable actors or efforts to counter potentially aggressive moves by China.

Given the limited military capabilities of most South-east Asian states relative to Beijing, the burden will probably fall once again on the United States and its allies and partners like Japan, ideally working with claimant states as well.

In addition to regular patrols, routine military exercises and periodic freedom of navigation operations, Washington may also consider other deployments and even capability upgrades for specific actors.

And even though the outgoing Obama administration may prefer a scenario where tensions are low so it can focus more on seizing opportunities in the Asia-Pacific and cementing its legacy during its remaining six months, aggressive Chinese actions may force Washington to take even stronger measures. If China chooses to do what the United States has already warned it not to do - like starting reclamation at Scarborough Shoal or moving towards declaring an air defense identification zone (ADIZ) in the South China Sea - Washington will have to react.

If tensions ratchet up, regional states will have to determine for themselves to what extent they want to be involved in such efforts. After all, for all the talk about the importance of the verdict itself, it means precious little if the parties do not respect it and actors do not enforce it.

stopinion@sph.com.sg

Prashanth Parameswaran is associate editor at The Diplomat magazine based in Washington, DC and a PhD candidate at the Fletcher School of Law and Diplomacy at Tufts University focused on South-east Asia, Asian security affairs, and US foreign policy in the Asia-Pacific.