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Hague ruling further complicates Asean-China ties

The recent Permanent Court of Arbitration (PCA) verdict in favour of the Philippines’ case against China’s claims in the South China Sea will have significant implications for Beijing, the Association of South-east Asian Nations (Asean), and territorial disputes in the strategic waterway.

People watching a news broadcast on the South China Sea outside a shopping mall in Beijing. The path towards resolving the South China Sea disputes is fraught with challenges. Photo: Reuters

People watching a news broadcast on the South China Sea outside a shopping mall in Beijing. The path towards resolving the South China Sea disputes is fraught with challenges. Photo: Reuters

The recent Permanent Court of Arbitration (PCA) verdict in favour of the Philippines’ case against China’s claims in the South China Sea will have significant implications for Beijing, the Association of South-east Asian Nations (Asean), and territorial disputes in the strategic waterway.

The ruling will also have a profound impact on a Code of Conduct that Asean is negotiating with China.

Observers have argued that Beijing’s rejection of the tribunal ruling is consistent with preceding examples of how great powers tend to ignore international law and tribunal rulings if these go against their sovereignty and national interests.

For example, in 1986, when the International Court of Justice ruled against the United States for violating Nicaragua’s sovereignty, the US rejected the ruling. Indeed, the notion of “might is right” dominates the foreign policy strategy of great powers.

Although Beijing has rejected the tribunal ruling, it does not mean that China has little regard for international law and norms. Beijing has sought to observe international law in other areas, such as the regulations stipulated by the World Trade Organization.

At the same time, China is a signatory to the 1982 United Nations Convention on the Law of the Sea (Unclos). As such, Beijing should have accepted the verdict of the arbitration, given that the PCA has legitimate jurisdiction over the Philippines’ case and the tribunal ruling is a legally authoritative interpretation of Unclos.

By dismissing the arbitration, China’s image as a great power that respects international norms will be damaged to some extent.

Prior to the tribunal ruling, Beijing actively launched a diplomatic charm offensive to win the support of various countries in Asia. China also accused the US of hypocrisy for not ratifying Unclos while urging other countries to abide by it. Ostensibly, these were done to reduce the diplomatic backlash against China. If rejection of the tribunal is all that Beijing needs to do, why would it pour in so much diplomatic effort to shore up support for its position regarding the arbitration?

Thus, China’s actions indicate an acknowledgment of the universal legitimacy of international law.

China seeks to be a responsible major power that follows international law, but the South China Sea dispute demonstrates that this is no easy feat for Beijing, especially when national interests clash with the norms of the international community.

IMPLICATIONS FOR ASEAN

With this tribunal ruling, Asean’s political posture on the role of international law in the context of the South China Sea disputes would change as well. For many years, Asean had frequently highlighted the importance of observing international law and peaceful dialogue regarding the South China Sea disputes.

In the future, if Asean leaders were to urge all parties involved in the South China Sea issue to observe international law, they cannot afford to ignore the verdict of the tribunal.

Otherwise, their calls to resolve the disputes in accordance with international law would appear to be hollow.

Several Asean countries have responded to the ruling. The Philippines expressed that the verdict is a key milestone, with Vietnam also welcoming it. While Malaysia, Indonesia and Singapore were careful not to take sides, the press releases from their foreign ministries were unified in their message on the need for peaceful resolution of the disputes in accordance to international law.

Cambodia has been a outlier in this regard, as it has indicated in no uncertain terms that it would not be involved in any Asean statement on the tribunal verdict, even though Phnom Penh has underscored the need to handle the disputes through peaceful means. Thailand’s foreign ministry press release made no reference to the content of the tribunal ruling, but urged peaceful cooperation.

Indeed, the tribunal has complicated China-Asean relations. Future discussions among Asean leaders and officials on international law in the context of the South China Sea issue will have to be couched very carefully, as it would allude to the tribunal.

This requires finesse to avoid offending Beijing at this sensitive moment so as to prevent China-Asean relations from souring, which could lead to an escalation of tensions.

On a positive note, the tribunal ruling would provide some degree of clarity to all parties involved in the disputes about their claims in the South China Sea. Furthermore, the practice of international arbitration could be further entrenched to help resolve the South China Sea disputes in addition to Asean-centric multilateral diplomacy or bilateral negotiations.

China’s refusal to accept the tribunal ruling also raises the question about the viability of a legally binding Code of Conduct (COC) that would regulate behaviour and reduce tensions in the South China Sea. The problem is that even if this COC is eventually adopted, there is no guarantee that Beijing is committed to observe it.

How the COC would be enforced remains to be seen.

Indeed, the path towards resolving the South China Sea disputes is fraught with challenges. In the end, what really matters is for leaders of Asean and China to exercise their political will and work together to achieve lasting peace and stability in the South China Sea.

ABOUT THE AUTHOR:

David Han is a research analyst with the Malaysia Programme at the S Rajaratnam School of International Studies, Nanyang Technological University.

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