The Philippines’ arbitration case against China has created significant new dynamics in the South China Sea disputes. With the prospect of a ruling from the tribunal in the coming months, it is time to ponder the case’s possible consequences. The tribunal will likely reach a decision on at least the seven submissions by the Philippines on which the judges have already announced jurisdiction. But the claimant states, especially China, are unlikely to dramatically change their major policies and positions as a result.
There is a very strong possibility that Beijing will just ignore the arbitration result, as suggested by ongoing deliberations within Chinese policy circles. The Philippines’ approach took China by surprise. Beijing is by no means prepared to settle the South China Sea disputes through legal means. Chinese foreign policy elites are not convinced that the arbitration is about legal contestations between the Philippines and China at all. Many of them firmly believe that Washington has been heavily involved from the beginning, and that Manila initiated the case to provoke and put political pressure on Beijing. These elites point to the coincidental timing of various decisions by the tribunal and U.S. activities in the Asia Pacific. Chinese maritime lawyers claim that there are numerous weaknesses and loopholes in the tribunal’s October 29 Award on Jurisdiction and Admissibility.
There is almost no convergence of views between China and the Philippines (or other players) on the arbitration case. As a result, the expected ruling could have a number of significant consequences.
First the South China Sea disputes will become increasingly legalistic. The mainstream international understanding will be that the arbitration result is binding on China. The international and regional discourse concerning the South China Sea will likely highlight the legal aspects of the disputes far more. The international press will constantly mention the tribunal’s ruling whenever there is any conflict or tension in the South China Sea. China will almost certainly be criticized by international media for not respecting the ruling. And Vietnam, depending on the specific outcomes of the Philippines’ case, could be more serious about initiating its own legal process against China.
Second, the South China Sea disputes may become more internationalized. Other claimant states, and even some non-claimant countries in the region, will be disappointed by Beijing’s rejection of the tribunal’s judgment. Feeling that they have exhausted other options in dealing with China on the disputes, these countries may decide to encourage external powers to get more involved in security management in the South China Sea. The current ASEAN-China dual-track approach may face greater strains. For instance, the idea of having a regional code of conduct instead of an ASEAN-China code may gain more traction.
Third, the arbitration will likely stimulate a new round of conflicts and tensions in the South China Sea. Some claimant countries will take actions, such as increasing fishing, exploring for new energy resources, and expanding law enforcement activities, in areas the tribunal deems undisputed to test China’s reactions and resolve. This scenario is especially likely if the tribunal denies China any historical rights in the South China Sea on the basis of the nine-dash line. As soon as China responds in a manner that appears inconsistent with the tribunal’s decision, other claimant countries might quickly launch public relations campaigns to condemn China.
Fourth, strategic rivalry between China and other major players in the South China Sea may increase. The South China Sea is not only a dispute about territorial claims and maritime demarcation between a few claimant states. It is also directly relevant to the security structure and regional architecture in the Asia Pacific. Any conflict or tension in the South China Sea is likely to prompt a U.S. reaction; otherwise the United States’ predominant position, its security commitments, and its regional security role would be significantly damaged. There is no evidence that the United States is prepared to adopt a weaker position or policy in the South China Sea anytime soon. In fact, the arbitration may intensify U.S. involvement in the South China Sea. Other major players, including Japan and Australia, may also increase their presence and activities in the South China Sea, for instance by conducting their own freedom of navigation operations. The strategic realignments and security ties between regional states and external powers, especially the United States and Japan, may evolve to China’s disadvantage.
Fifth, China will likely encounter serious diplomatic challenges in the aftermath of the arbitration. In the past few years, many Southeast Asian countries’ concerns about China’s policies in the South China Sea have grown. If a new round of conflict and tension takes place, regional views will very likely turn further against Beijing. As a result, China’s relations with Southeast Asia may experience new constraints. Some ASEAN countries may harbor reservations toward Chinese diplomatic proposals. Beijing may experience difficulties in implementing the Twenty-First Century Maritime Silk Road initiative. It is also very likely that China may face more diplomatic difficulties at regional multilateral settings in the Asia Pacific at which the South China Sea issue is frequently raised, including the ASEAN Regional Forum, ASEAN post-ministerial meetings, and East Asia Summit. Many countries will use rhetoric accusing China of not respecting international law in the South China Sea disputes. It will be difficult for China to convince others that the tribunal’s decision was unfair or illegal, and thus that China has the right to ignore it, unless the tribunal makes controversial decisions such as declaring Itu Aba (Taiping Island) legally a rock and not an island.
The arbitration will not help resolve the South China Sea disputes, especially the core issues involving territorial sovereignty and maritime demarcations. In the short run, there is likely to be a period of greater turbulence once the tribunal’s decision is known. The extent of conflicts and tensions may depend on the actual ruling by the judges. There will be challenges for all parties concerned, but China may have to face more difficulties than any other country after the arbitration. The major challenge for China will be how to balance its strategic, security, political, and economic interests in the Asia Pacific and beyond with its territorial and maritime interests in the South China Sea. It would be advisable for China to be better prepared to fight the legal battle in the South China Sea disputes instead of its current attitude of trying to avoid legal contestations altogether.