Five years after an international arbitration court in the Hague ruled that the majority of China’s maritime claims in the South China Sea had no legal basis or validity, much has changed in the regional environment—but not in a positive way. The tribunal award had been expected to exert global diplomatic pressure on China to scale back its aggressive behavior in the sea. However, the international situation has been in China’s favor over the past five years. The electoral victory of Philippine president Rodrigo Duterte dramatically changed the dynamics of the ruling. Thereafter, Covid-19 also accentuated China’s advantages. China emerged almost unscathed, becoming the only major world economy to grow last year, while the pandemic has been wreaking havoc on regional littoral countries in the South China Sea. As a result, China’s behavior has not been altered much—it continues to act largely unrestrained in the South China Sea.
Nevertheless, it is still worthwhile to revisit the significance of the tribunal ruling on the regional environment. The neglect of international law in the South China Sea has strategic implications for ASEAN’s security policy, as well as for the group’s ability to speak with one voice toward Beijing. Given the fundamental disagreements between the realpolitik advocates within ASEAN, the prospects for consensus among members remain slim, not only on the South China Sea issue but also for the establishment of a truly integrated community as the bloc claims.
China seems to be successful in managing to convince most of the Southeast Asian countries that confronting China will undermine their economies, whether through implicit sanctions from China or reduced Chinese investments. In 2012, Philippine banana exporters felt the heat of the Scarborough Shoal incident with sudden Chinese restrictions on imports. We still do not know for sure if the reason President Duterte set aside the tribunal ruling was to avoid other such sanctions from China.
With Duterte’s enduring efforts to engage China, the tribunal award card has been kept off the table for the last five years. The “put aside” approach propagated by the Philippines has not been shared by many other ASEAN member states, which assessed the issue differently in the context of national security. Observers have criticized this approach as putting the interests of the Philippine economy ahead of its territorial integrity and ASEAN solidarity.
When it comes to the rifts inside ASEAN, China knows that it can push for more. Beijing has played a carrot-and-stick approach toward ASEAN for a long time. China does not hide how long its sticks can be. It has been deploying new assets to military bases on its artificial islands for years; yet this is hardly Beijing’s only indication that it is stepping up its assertive policy in the South China Sea. China is also using huge fleets of fishing militia vessels to help assert its territorial claims, sinking Vietnamese fishers’ boats and swarming Whitsun Reef, an unoccupied feature claimed by the Philippines and Vietnam. In 2019 and 2020, China enlisted a survey ship, the Haiyang Dizhi 8, along with its coast guard and paramilitary escorts, to harass Malaysian and Vietnamese gas exploitation projects in their respective exclusive economic zones. Last year, China began ramping up naval exercises in the South China Sea with the presence of its first aircraft carrier. With the combination of grey zone tactics and displays of its beefed-up blue-water navy, China has been demonstrating that it has sufficient capabilities to advance its “punitive agenda.”
Additionally, the ongoing negotiations on the Code of Conduct have masked the fact that China has been employing all the tools of statecraft to deflect the international attention from the legal validity of the 2016 ruling and press on with its own ambitions. One of these measures is to come up with an international treaty that the 10 ASEAN members can agree to with China. Beijing is pushing for the quick completion of Code of Conduct in the South China Sea to serve as a replacement for the 2016 tribunal ruling. The negotiation process has finished its second round, with the next round potentially the final. But many concerns remain, including among outsiders. India is afraid that China may be using the Code of Conduct out of sync with the United Nations Convention on the Law of the Sea (UNCLOS) to exclude the participation of third countries in exercises in the South China Sea.
Not only is China undermining international law, but it is also seeking to expand the reach of its domestic law internationally. In February 2021, China passed its new Coast Guard Law which authorizes the Chinese coast guard to fire on foreign vessels entering China’s waters without permission—an authorization with serious regional implications given that China lays claim to the majority of the South China Sea. The move directly serves China’s larger purpose: to codify and impose its own rules and legal interpretations in order to reshape the regional order.
Without properly addressing the legal validity of the 2016 arbitral award in its negotiations with China, ASEAN is taking the risk that it will undermine the group’s common interests and international law, leading to diverging stances among ASEAN members. The completion of the Code of Conduct without incorporation of the tribunal ruling would grant China additional leverage over Southeast Asian countries. It would further entrench China’s maritime claims in the South China Sea. At the same time, the situation also robs ASEAN of the opportunity to pressure China to respond to its violations of UNCLOS.
Given these risks, ASEAN countries are facing a gordian knot. They do not want problems with their biggest trading partner, China. At the same time, they also do not want China to dictate the law in the region. Sadly, Southeast Asian nations are too weak to resolve this dilemma on their own. The burden is on the Biden administration, who could step up to challenge China’s illegal claims in the South China Sea and support the rule of law. The 2016 tribunal ruling, and the failure thus far to uphold it, is a reminder of how essential international law is to security and prosperity in the region. Without it, the situation will quickly deteriorate as China’s ambitions to reshape international rules go unchecked.