South China Sea ruling anniversary and the disregard for the rule of law

Last Friday marked the eighth anniversary of the Philippines-China South China Sea arbitral tribunal ruling. That decision was a win for Manila, but the then-Philippine government refused to press China to honor the verdict. Coupled with Beijing’s disregard for the entire legal procedure, Manila was effectively neutralized from leveraging the case to protect its sovereign interests.

Yet even if a nullity, the case has important implications. China’s response has provided a troubling signal of its intentions. The readiness to flout international legal obligations makes clear Beijing’s unwillingness to accept limits on its power. Many regional governments are indifferent to that fact, however. They refuse to press Beijing to honor international law, a troubling resignation to the brutal reality of pure power politics.

Yet, it’s an own goal, nevertheless, undermining the foundational premise of China’s diplomatic rhetoric — that all nations are equal — and forcing some neighboring governments to take steps, including closer defense relationships, to balance against Beijing. It undercut the charge that anti-Chinese behavior is invariably ideological and instead provides a rallying point for governments troubled by China that is largely neutral — the defense of international law.

The suit was filed by the government of then-Philippine President Benigno Aquino, seeking a decision on the status of certain maritime “features” — the technical term for reefs, rocks and the like — and the legal rights they create. The court took the case, but refused to “rule on any question of sovereignty ... and would not delimit any maritime boundary.”

The decision, announced July 12, 2016, was as resounding a win for Manila as could be imagined. The tribunal ruled that key features, such as Mischief Reef, Second Thomas Shoal and the Spratly Islands, don’t create maritime zones of their own or entitlements to an exclusive economic zone (EEZ) or continental shelf. It dismissed China’s historical claim to the waters as unfounded in international law, in particular the United Nations Convention on the Law of the Sea (UNCLOS), and concluded that Mischief Reef and Second Thomas Shoal are part of the Philippines’ EEZ and continental shelf. (International legal scholars will be grimacing throughout this summary, but it’s good enough for the opinion pages.)

China not only dismissed the verdict, it didn’t even participate in the proceedings, claiming that it — like other nations — didn’t agree to the tribunal’s jurisdiction when it ratified the treaty. The court dispensed with that argument, saying that the dispute was not covered by treaty exceptions, Beijing couldn’t opt out and the court could decide the case.

By the time of the verdict, however, the government in Manila had changed and new President Rodrigo Duterte merely pocketed the judgment. Whether driven by animus against the U.S. or the desire to forge a new relationship with China that reflected a different strategic calculus, his administration preferred to cozy up to Beijing, and if that meant abandoning the ruling, he was prepared to do so.

Duterte’s successor, Ferdinand Marcos Jr., has returned to a more traditional foreign policy, one that uses every possible tool to safeguard his country’s national territory and interests. On last week’s anniversary, the Philippines’ Department of Foreign Affairs called the decision “a reaffirmation” of UNCLOS that “protects our rights as a coastal state and a seafaring people” and promised the “full and responsible enjoyment of our legally settled maritime entitlements and its accompanying rights and jurisdictions.”

Other governments issued similar statements, among them the U.S., Australia and the European Union. They all agreed that the 2016 arbitral decision was “final and legally binding” on the People's Republic of China and the Philippines and denounced recent Chinese actions, such as impeding the passage of Filipino vessels — even ramming boats and using water cannons — as “a blatant disregard for international law as well as the safety and livelihoods of Filipinos.”

Japan’s response was milder. In a statement last month, the Foreign Ministry agreed that the decision was “final and legally binding on the parties to the dispute,” adding that “Japan strongly hopes that the parties’ compliance with the award will lead to the peaceful settlement of disputes in the South China Sea.”

None of this weighs on Beijing. China’s refusal to accept the verdict is undiminished. Its maritime forces engage in increasingly aggressive behavior over Second Thomas Shoal and tensions there are intensifying, surpassing even the Taiwan Strait as a locus for potential confrontation and conflict.

On the eve of the anniversary, Beijing stepped up its campaign to undercut the ruling. Last week, three Chinese institutions — the Huayang Center for Maritime Cooperation and Ocean Governance, the National Institute for South China Sea Studies and the Chinese Society of International Law — released a report that explained flaws in the judgment. It was dutifully played up across Chinese media.

The Global Times, the Chinese nationalist tabloid, summarized it as reaffirming China’s “nonacceptance, nonparticipation and nonrecognition” of the ruling and rejects any claims or actions based on it. It reasserts Beijing’s “historical claim” to the waters, which is based on over 2,000 years of activity in the region, with the Chinese having been first to discover, name, explore and utilize the area. Moreover, the Philippines, Chinese scholars insist, never exercised control over the territory. (I’m using territory and water interchangeably.)

It reiterates the claim that the court could not have jurisdiction because the case addressed issues of territorial sovereignty, which don’t fall within the application of UNCLOS. The report also challenges the makeup of the tribunal, asserting that since none of the arbitrators came from Asia, the ruling “took little account of Asian cultures, diplomatic and legal traditions and other regional factors which should have informed its decision making.”

Finally, it insists that the ruling has been a tool for outside powers to stir up troubles in the region, complicating relations between China and ASEAN, and provides no means to resolve the issues. As Xinhua, the official Chinese news agency, neatly summarized in a commentary, the ruling is “illegal and void and has no binding force.”

In fact, “the Philippine side is the violator of international law,” and “the case was a pure political drama staged in the name of the law with the United States pulling strings behind the scenes,” that aimed “not to settle disputes with China, but to deny China's territorial sovereignty and maritime rights and interests in the South China Sea.”

Resolution and stability, concluded the Xinhua writer, is only possible through dialogue and consultation, which “complies with Oriental cultural traditions,” the principle China “upholds” in dealing with international disputes. The Manila government must proceed cautiously and not “play the victim” of rely on disinformation, which “will only bring disgrace upon the initiator, and a pawn of hegemonism and imperialism is destined to be discarded.”

China is unbowed — understandably, since it has paid relatively little for its recalcitrance. According to the Asia Maritime Transparency Initiative, a project of the U.S. think tank the Center for Strategic and International Studies, as of November 2023, 26 governments had publicly called for respecting the ruling, 17 were generally supportive but didn’t publicly press the case and 8 publicly rejected it.

Southeast Asia nations have largely accepted Beijing’s behavior. They’ve acquiesced to the island-building project that facilitates the spread of Chinese physical — and military — presence across the region and cling to long-stalled negotiations on a code of conduct for the South China Sea, content with declarations of a new deadline instead of real progress.

According to ASEAN Secretary-General Kao Kim Hourn, a deal is expected next year. Experts are skeptical about the deadline or that any agreement will be worth the paper it’s printed on given Beijing’s treatment of the 2016 ruling and reporting that a key point of contention is whether the deal will be legally binding. Writing in the Nikkei Asia Review this week, Derek Grossman, a former Pentagon analyst now at Rand, concluded that Xi Jinping's China “cares far less about its international reputation and is content flouting international law and norms of behavior if doing so suits Beijing's interests.”

China’s thinking seems short-sighted. The second-order effects of dismissing the arbitral ruling have been stark. It has alerted some governments to China’s disdain for international law and pushed them to take measures to help themselves. This has meant larger defense budgets, strengthened ties with allies and partners and new security relationships with other nations.

While the U.S. is an obvious beneficiary of that shift, so too is Japan. Not only has it altered domestic thinking about security and defense, but the ensuing changes have made Tokyo an increasingly valued partner to worried neighbors.

This isn’t the first such development, nor will it be the last. China may yet regret its blithe dismissal of international law as a tool to protect its own interests.