Revisiting the South China Sea Tribunal Arbitration of 2016: International Law Being Eclipsed by Might?

By Nguyen Thanh Trung —

Mischief Reef in the Spratly Islands in late 2017. The People’s Republic of China constructed buildings (shown in red) covering 17 acres, or 68,500 square meters on the island. This included underground storage for ammunition and other materiel, the completion of hangars and missile shelters, and new radar and communications arrays. China’s control and construction on the island is illegal according to 2016 ruling of the Permanent Court of Arbitration. Source: CSIS AMTI/Digital Globe.

The award by the permanent court of arbitration in the Philippines-China case over the South China Sea is two years past, but its effect remains in doubt. When the arbitral tribunal’s decision came out, it was considered a game changer in the South China Sea in several notable aspects. First, the ruling’s invalidation of China’s historic rights, especially the nine-dash line, was crucial. Second, that there is no rock feature classified as an island according to Article 121, United National Convention on the Law of the Sea (UNCLOS). In brief, it ruled China’s sovereign claims in the South China Sea had no legal basis.

In contrast, two years later the political landscape in the region has changed in an uber-realist way. China started to extend its power to assuage the impact of the tribunal award. The first target is the Philippines. Considered to be a big beneficiary of the arbitral award, the Philippines under the Duterte administration has ignored the legal leverage of the award brought by his predecessor Aquino in return for an investment surge and huge loans from China. It might take time to evaluate whether President Duterte’s tactic is wise or not in terms of economic benefits. One thing that is obvious is that a huge sum of current Chinese money goes to the mining industry and casinos, not investments necessarily benefiting the Philippines in the long-term.

Duterte’s friendly approach towards China is constructive in the sense that it helps deescalate maritime tensions and opens the way for further bilateral discussions and negotiations between the Philippines and China. However, Duterte choosing to forego the leverage the arbitral decision provided has created lots of difficulties for other claimants, especially Vietnam. These two countries were previously partners in openly criticizing China’s assertive behavior, and now Vietnam has to look for alternatives. In other words, Vietnam is often flying solo on this issue.

The Philippine ignorance of the decision of the arbitral tribunal generates a negative implication that international law is not applicable in the South China Sea. In a 2008 paper titled “The Rise of China and the Future of the West: Can the Liberal System Survive,” John Ikenberry emphasizes that China is not facing the United States only, but it faces a Western-centered system that is open, integrated, and rule-based, with wide and deep political foundations. However, Ikenberry also warned that the United States might be preoccupied with other concerns that might distract it from upholding the rules of international law. What Ikenberry argues is clearly happening when the sitting U.S. administration is withdrawing from its international duties and responsibilities.

Even though the arbitral court’s ruling is considered to be binding on the participants, western liberal democracies which are expected to uphold the award, have seemed to let it slip away at the expense of small powers in the region. Ikenberry warns that the United States must renew support for the deeply-rooted, rules-based institutions since they benefit a full spectrum of states, or it sees its dominance fade away Ideally, China’s power is exercised within the Western rules and institutions that have been designed over the last century, but the reality is the other way around.

In defiance of tribunal decision, China has continued its aggressive behavior to exert dominance in the South China Sea. The CSIS Asia Maritime Transparency Initiative (AMTI) identified that since 2013 China has reclaimed 3,200 acres, which is bigger than the size of 3,500 football fields, in the Paracels and Spratlys for both civil and military use. The sheer scale of China’s land reclamation dwarfs other claimants’ efforts. In a 2015 summit talk with then President Obama, Chinese president Xi Jinping allayed fears about China’s intention of militarizing those islands as garrisons and pledged commitments to freedom of navigation. However, satellite images from AMTI revealed that sizeable weapon systems have been installed on these artificial islands. Recently in Shangri-La Dialogue, He Lei, a China’s lieutenant general, boastfully said, “Deploying troops and weapons on islands in the South China Sea is within China’s sovereign right to do and allowed by international law.” Sadly speaking, a change of rhetoric in China’s foreign policy might predict the ineffectiveness of international law, especially UNCLOS. At the same time, a more assertive Chinese discourse might send the misleading signal that China is the one who really calls the shot in the region, not the law.

China’s economic might is fully demonstrated in several Southeast Asian countries. Cambodia – with an economy is largely propped by massive Chinese investments and aids – has found its voice congruent with Chinese interests in regional issues. Belt and Road Initiative projects have catapulted China into the top 3 investors in Indonesia, and these big-money investments become an integral part of President Widodo’s reforms on infrastructure. When the Malaysian foreign minister tried to push for the inclusion of “the presence of military assets in the South China Sea” in the 2017 ASEAN joint communiqué, Indonesian and the Philippine counterparts did not agree to it. The Philippines also vetoed Vietnam’s effort to include “land reclamation” and “militarization” in the communiqué on the grounds that the language does not reflect the reality. Mr. Cayetano, Philippine foreign minister, is quoted as saying that they do not like to be told what to do upon requests to respect the 2016 tribunal award.

The prospect for rules-based governance in the South China Sea is growing dimmer than it was two years ago. Vietnam may find it hard to evade being enticed by a Chinese charm offensive, or even worse, falling into China’s orbit.

Dr. Nguyen Thanh Trung is Director of the Center for International Studies in the University of Social Sciences and Humanities at Vietnam National University – Ho Chi Minh City. He can be reached via email at: [trungnt@hcmussh.edu.vn].

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