The Geopolitics of the Hague Ruling on the South China Sea Dispute

Thinking Beyond Politics
Renato Cruz De Castro

Posted on July 12, 2017

On 12 July 2016, the Permanent Court of Arbitration delivered its long-awaited ruling on the protracted dispute between the Philippines and China. The PCA ruled in favor of the Philippines in 14 of its 15 claims against China in the South China Sea. To recap, here are a few of the court’s important findings:

China’s claims -- defined by the nine-dash line -- is a violation of international law.

Although the Spratly Islands were historically used by small groups of fishermen and several fishing and guano mining enterprises, these land features could not sustain habitation by a stable community.

None of the Spratly Islands is capable of generating extended maritime zones. It noted that these features now have installations with maintenance personnel.

These modern presences are dependent on outside resources. In fact, many of the features have been modified to improve their habitability.

Chinese reclamation and construction projects infringe on Philippine territorial rights.

China erred in destroying the maritime environment by building artificial islands and illegally preventing Filipinos from fishing and exploring oil in area.

Furthermore, the PCA determined that China violated the rights and obligations of nations utilizing the ocean by destroying the marine environment through its constructions of artificial islands; openly defied Philippines sovereign rights by interfering with oil and gas exploration at the Reed Bank; and illegally constructed a facility on Mischief Reef, which sits on the Philippine continental shelf.

The PCA award is a strong assertion of the impartiality and effectiveness of the dispute resolution mechanism of UNCLOS and, more significantly, the triumph of the Philippines’ liberal approach over China’s realpolitik approach.

The ruling, however, is not simply a sweeping legal victory and a decisive setback for China. It is a game changer that may transform the strategic milieu of the disputes, reshaping the actors’ strategies and identities, and strongly motivating them to change their courses of actions.

At the core of this change is the newfound clarity that China’s claim, based on the nine-dash line, has neither legal nor historical foundation. The ruling made clear that no country can lawfully assert “historic rights” in the high seas.

The ruling exposed China’s expansive claim as a component of a long-term maritime strategy aimed at eroding America’s preponderant position in the region, weakening the credibility of US security commitments, fragmenting ASEAN and other regional bodies, and coercing specific regional states to accommodate its self-defined and self-proclaimed “core interests.”

In the mid-1980s, Admiral Liu Huaqing, the commander of the People’s Liberation Army Navy (PLAN), announced the “Near Seas Active Defense” doctrine. This doctrine called for the People’s Liberation Army (PLA) to form layered defenses to deter a potential adversary from threatening China from the sea. In the 1990s, China developed an arsenal of ballistic and cruise missiles aimed at virtually every US airbase and port in the Western Pacific.

These weapons are also designed to sink vessels operating hundreds of miles off China’s coast. Chinese military planners believe that their missiles, with anti-access/area denial (A2/AD) capabilities, can adequately prevent the US Navy from intervening or provoking a confrontation with China. Chinese control of the South China Sea will extend the PLA’s A2/AD. This will enable the PLA to deploy submarines, surface combatants, and aircraft to delay or deter US response to regional crisis.

Using satellite photos, the Asia Maritime Transparency Initiative revealed that while the ASEAN and China are negotiating a framework of a binding Code of Conduct, the construction of military and dual-use facilities on Chinese-occupied land features continues. The PLA has built missile shelters, radar/communication facilities, and other infrastructures that imply that while China is engaged in negotiations with ASEAN, it remains committed in developing its military capabilities.

In the light of these developments, the PCA ruling forces states in the region to take sides -- either to be on the side of international law (or the status quo) or against it (revisionism leading to China’s domination of the South China Sea). Prior to the ruling, regional states articulated their own interpretations of the disputes and preferred to be fence-sitters.

The PCA award also produces the basis and motivation for cooperation among states that are threatened by China’s expansion and are supportive of international law. Before the ruling, the maxim of “each to his own” hindered these states from engaging in robust cooperation to constrain China’s maritime expansion. With the PCA’s ruling, littoral states like the Philippines, Malaysia, Indonesia, and Vietnam can join forces and lawfully align themselves with major naval powers like the United States, Japan, Australia, and India to defend their EEZ against Chinese encroachment, and rationalize this effort to uphold international law.

If cooperation before the ruling could be interpreted as taking sides and ganging up on China, now it can be regarded as a collective effort by the international community to defend the rule-based order against an aggressive and expansionist power.

On July 12, Stratbase ADR Institute will hold a forum titled “The Framework Code of Conduct, One Year After Arbitration.” The by-invitation forum will feature insights from Defense Secretary Delfin Lorenzana, Justice Antonio Carpio, Dr. Jay Batongbacal, former National Security adviser Roilo Golez, Dr. Ginnie Bacay-Watson, and Mr. Koichi Ai, in addition to Ambassador Albert del Rosario.

Renato Cruz De Castro is a Trustee of Stratbase ADR Institute, and a Professor in DLSU-Manila.