The limits of clarity in the South China Sea verdict

On July 12, the Permanent Court of Arbitration at The Hague issued a much-anticipated verdict in the Philippines’ case against China’s claims and actions in the South China Sea. The decision was overwhelmingly in Manila’s favour, finding that China’s notorious “nine-dash line” was unlawful; that most of the features in the Spratlys that China claimed were mere rocks rather than islands; and that China had violated its international legal obligations by causing environmental damage through its artificial island-building and undermining Philippine rights to fishing and petroleum exploration.

The verdict was clearer and more decisive than most had expected. At the same time, the implications of the verdict also quickly reveal both the limits of this clarity and the need for various parties to respect and enforce it if it is to be truly meaningful.

For China, which has been hiding under the ambiguity of the nine-dash line, clarity has now been imposed on it. As expected, Beijing has rejected the tribunal’s ruling. How China actually responds, however, is far from clear. On the one hand, Beijing could escalate tensions by stepping up militarisation in the Spratly Islands or even moving to declare an air defence identification zone (ADIZ) over the South China Sea. For those of a more hawkish persuasion, the focus for China should be to demonstrate the regime’s firmness in protecting Chinese sovereignty to a domestic audience as well as deterring other South-east Asian states from challenging Beijing as Manila has done.

But with a more conciliatory new government in the Philippines under President Rodrigo Duterte, China could also pursue a more restrained course, or at least calibrate its assertive actions as it has done in the past. This would be consistent with a view among others in Beijing that the South China Sea issue has been damaging to the country’s regional image, and that a more moderate approach could then allow China to shift the focus from coercing South-east Asian states to charming them with new economic initiatives.

So far at least, the fact that Beijing has not taken any major destabilising kinetic actions — apart from flying a civilian aircraft between Mischief and Subi reefs — and has even reportedly moved to censor nationalist sentiment gives some hope that it may lean towards pursuing this path.

For the Philippines, the challenge is how to best translate this clear legal victory into some sort of negotiated settlement without alienating China. The verdict could either help or hinder things in this regard.

On the one hand, the clarity of the ruling could help the Duterte administration set the parameters for negotiations with Beijing, which thus far have been lacking. But it could also complicate things. The court’s ruling on specific features means that another layer of complexity has been added to how Manila might pursue joint development activities with Beijing.

If the administration is seen as illegally or improperly sharing resources within an area that, as a result of the ruling, clearly falls within the Philippine exclusive economic zone (EEZ), it could now be subject to even fiercer domestic pressure and international scrutiny.

RESTRAINT FROM ALL SIDES SO FAR

For the other claimants in the South China Sea, the ruling raises more questions than answers as they will weigh several considerations including their own claims, capabilities, and overall relationship with Beijing.

To what extent will Taiwan — which rejected the ruling especially given its designation of Itu Aba as a rock instead of an island — now continue on its path to bring its claims in line with international law? To what degree would Indonesia — which has not considered itself a claimant — now consider further hardening its position against encroachments from Beijing given the clear illegality of the nine-dash line? Might Vietnam, which filed a statement of interest in the Philippine case, now consider taking China to court as well?

The limits of clarity are also evident in the regional and global realms.

Over the past few years, we have witnessed some forward-leaning Asian countries and other concerned actors argue that China’s claims and actions clearly violate the so-called rules-based international order.

We now have a third party with final and binding legal authority declaring that this is the case, rather than just states with their own interpretations of international law. That itself is a big step forward for clarity.

What still remains unclear, however, is how this clarity will affect the extent to which states will be willing to support the verdict and, if needed, pressure China to abide by it. We have seen several countries issuing individual statements following the ruling.

We can expect other members of what United States Defence Secretary Ashton Carter recently called a “principled security network” to also raise this issue in bilateral meetings as well as regional and global fora, even if a few others may also resist this diplomatic campaign for various reasons.

Regionally, one key litmus test will be the upcoming round of Association of South-east Asian Nations (Asean) ministerial meetings later this month. The world will be watching to see if Asean foreign ministers can unite to at least issue a joint communique with some language in support of the ruling, or whether Cambodia and Laos will once again prevent consensus from being reached as was the case last month in Kunming.

Beyond that, if tensions persist, the diplomatic game could also continue playing out in other regional and global fora for the remainder of 2016, including the East Asia Summit and the United Nations General Assembly. Thus far, the US has been fairly restrained in its own rhetoric as well as in its consultations with allies and partners, perhaps in the hope that giving China space will move it away from a more escalatory course. But that might change depending on how Beijing reacts.

Words will need to be backed up by action. Yet clarity is arguably even more difficult to establish when it involves military moves to either deter or counter Chinese actions in the South China Sea. For instance, while some of the steps that the US has taken so far, such as expanding military exercises or conducting occasional freedom of navigation operations, might seem like clear signals and are likely to continue, the moves Washington may need to take following the ruling may be more complex.

If China begins reclamation at Scarborough Shoal despite US warnings, would Washington be willing to forcibly prevent Beijing from doing so? If Beijing institutes a blockade of Philippine marines stationed on the BRP Sierra Madre at Second Thomas Shoal and it leads to violence, would Washington come to Manila’s aid? And if China does declare an ADIZ over the South China Sea, will the US response be as firm and fast as we saw when it did so in the East China Sea?

These clear responses to escalatory actions — or lack thereof — will do much to affect clarity, but also American credibility in the South China Sea. And they will depend not only on Washington, but its relationships with allies and partners, some of which are still in flux like the Philippines under the Duterte administration.

The arbitral tribunal has done its part by issuing a verdict that is clear and decisive. Yet the clarity that the decision offers also has its limits. It will be up to China and the Philippines, along with other claimants and concerned regional and international actors such as the US, to respect and enforce the verdict in the coming months if it is to have the significance that it deserves.

ABOUT THE AUTHOR:

Prashanth Parameswaran is Associate Editor at The Diplomat magazine based in Washington, D.C. and a PhD candidate at the Fletcher School of Law and Diplomacy at Tufts University focussing on Southeast Asia, Asian security affairs, and US foreign policy in the Asia-Pacific.