By Louie Dane C. Merced*
With the final award of the Arbitral Tribunal on the maritime disputes in the South China Sea/West Philippine Sea (SCS/WPS) ex- pected in the coming months, there has been a noticeable increase in activities not only on the ground, but also in the diplomatic circles. These developments provide some clues on how the arbitration case and the SCS/WPS disputes currently stand in the re- gional and even global discourse.
The Philippines’ advocacy for a rules-based approach in addressing maritime disputes in the SCS/WPS received an additional boost following the G-7 Foreign Ministers Meeting held in Hiroshima, Japan in April 2016. The foreign ministers of seven major developed countries – Canada, France, Germany, Italy, Japan, United Kingdom and the United States – affirmed the need to “fully implement any decisions rendered by the relevant courts and tribunals which are binding on them, including as provided under UNCLOS.” This adds to the several statements by leaders and high officials of these countries supporting the arbitration process initiated by the Philippines, as documented by the Foreign Service Institute.
Countries such as Australia, New Zealand and Timor Leste, on different occasions, have also voiced out the need to uphold the rule of law and affirmed that the Tribunal’s decisions are binding to the parties. The 28-member European Union (EU) also called on parties to “clarify the basis of claims, and to pursue them in accordance with international law including UNCLOS and its arbitration procedures.” While in the ASEAN-US Special Summit held in Sunnylands, California in March 2016, the leaders expressed their “full respect for legal and diplomatic processes… in accordance with universally recognized principles of international and the 1982 UNCLOS.”
Even countries that are not directly affected by and involved in the geopolitics of the Asia Pacific are voicing out their support for the rule of law. Botswana, in a press release by its foreign ministry in February 2016, called on claimants to “resolve their disputes through International Bodies set up for that purpose.” It added that “no country, no matter how big its economy or military should impose its power over others to make claims.” Meanwhile, the Pacific island state of Fiji, also expressed the need for “strict adherence to and enforcement of international law” in the SCS.
China’s search for friends
As the international support for a rules-based approach broadens, China has also been on the offensive in seeking diplomatic part- ners on the SCS disputes. China immediately hailed a remark made by the Russian foreign minister about the need to stop “any interference in the talks” and “attempts to internationalize” the disputes. For the first time, the SCS also figured in the joint com- muniqué of the annual ministerial meeting among Russia, India and China held in Beijing in April 2016. The three foreign ministers agreed that “disputes should be addressed through negotiations and agreements between the parties concerned.” While the com- muniqué also noted the need for “full respect of all provisions of the UNCLOS,” the separate sentence on negotiations and agree- ments between parties has drawn attention as it echoes China’s preferred approach in resolving the longstanding disputes.
In the same week as the Russia-India-China ministerial meeting, the Chinese foreign ministry announced that it has reached a four- point consensus with three ASEAN countries namely Brunei, Cambodia and Laos. This includes recognition that the SCS disputes “should be resolved through dialogues and consultations by parties directly concerned” and that “imposition of unilateral will” should be opposed – which have since been denied by both Cambodia and Laos.
China has also found a partner in The Gambia which released a statement supporting the Chinese position of not accepting and participating in the arbitration process. The small West African country, which recently switched its formal diplomatic relations from Taiwan to China, even went as far as affirming the “reality that China has indisputable sovereignty over the South China Sea Islands and the adjacent waters.” In addition, China also announced that it has obtained support from Kazakhstan, Kyrgyzstan, and Belarus, among others, following a series of sideline meetings of the CICA Foreign Ministerial Council held in Beijing.
What do these developments mean?
The apparent diplomatic contest between the Philippines and China as they vie for international support to their respective positions reveal the following:
First, the inclusion of the SCS in the agenda and statements of countries and regional organizations, including those outside the Asia Pacific, affirms that the issue is indeed a broader regional and international concern. The Philippines has long emphasized that the arbitration case goes beyond the maritime rights and entitlements of the claimants in the SCS and is about upholding the primacy of UNCLOS as the basis of the rights and obligations of States with regard to the seas. The articulation of views by non- claimants and smaller countries are significant as it shows that the situation in the SCS is about maintaining a global order where ‘right is might’ and where rule of law prevails. These in some ways offset China’s assertion that the disputes are only being hyped up by some major powers to contain its rise.
Second, China’s search for diplomatic allies and statements of support reveal a turnaround from its previous approach of preventing or downplaying the SCS disputes in multilateral meetings, and an implicit acknowledgement that the issue has become internationalized. While China reiterates that it is not accepting, participating in, and implementing the decision of the Tribunal, it is also concerned about the diplomatic isolation that it may face, particularly if the Tribunal favors the Philippines. Despite criticisms about the arbitration case as being a futile endeavor that is limited to moral suasion at best, China’s active solicitation for support from other countries indicates that it is indeed concerned about the reputational costs that it might incur from the release of the Tribunal’s final award.
However, it is also worth noting that China’s approach in seeking international support may draw more backlash than inspire new partners in the long run. The statement of Fiji on the need to enforce international law was a clarification to a report made by the Chinese media about the supposed Fijian support for China’s position on the SCS. China’s announcement of consensus with Brunei, Cambodia, and Laos has drawn strong criticisms from officials and analysts alike, for being an overt attempt to divide ASEAN on the SCS issue. Meanwhile, China was reported to have temporarily closed down its embassy in Gaborone in the same week that the statement by Botswana was released. This raised suspicions that China pressured the Botswana government to retract the said statement.
Finally, the growing contest for international support on the SCS emphasizes the need for more countries to become vocal and consistent in demonstrating their commitment to international law and a rules-based order. As argued by Jutta Brunneé & Stephen J. Toope (2010) in their interactional theory of international law, international law “lies not in form or in enforcement but in the creation and effects of legal obligation” through efforts to build and sustain reciprocity.1 The release of a final award by the Tribunal is not the end game in having a legal resolution of the maritime disputes in the SCS, as it is, in a constructivist sense, the continuous interactions by actors that will shape, strengthen, or unravel international law and norms. For the arbitration case to meaningfully contribute to the preservation of a rules-based order and international law, it is imperative that all stakeholders – big or small states, parties and non-parties to the case, including non-state actors – demonstrate their firm commitment and support to it. This could begin with the articulation of clear and consistent views about how adherence to shared norms and universally agreed principles of law is ultimately the path toward international peace and stability.
About the author:
* Louie Dane C. Merced is a Foreign Affairs Research Specialist with the Center for International Relations and Strategic Studies of the Foreign Service Institute. Mr. Merced can be reached at [email protected]
This article was published by FSI
1 Jutta Brunnée and Stephen J. Toope. Legitimacy and Legality in International Law: an Interactional Account. Cambridge University Press, 2010, 7.