Right versus might in the South China Sea

Will Southeast Asia stand up to China?

Malcolm Cook

PHOTO: AMTI/CSIS

International relations, Law, South China Sea | Asia, East Asia, Southeast Asia

5 August 2016

The Philippines may have won a legal victory over China, but will it be enough to change the game, Malcolm Cook asks.

Last November, Philippine Foreign Secretary Albert Del Rosario commenced his closing remarks for the case filed by his country against China under the United Nations Convention on the Law of the Sea (UNCLOS) by reaffirming the core principle of a rule-based global and regional order, international law, and the rationale behind the Philippines decision to exercise its legal rights.

“There are those who think the rule of law in international relations does not apply to great powers. We reject that view. International law is the great equaliser among states. It allows small countries to stand on an equal footing with more powerful states. Those who think ‘might makes right’ have it backwards. It is exactly the opposite, in that right makes might.”

Five aspects of the Arbitration Tribunal’s ruling on this landmark case issued on 12 July enhance its ability to ‘make right might’ in the South China Sea.

Firstly, Article 4 of the 2002 ASEAN-China Declaration on Conduct of Parties in the South China Sea requires that, “The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognised principles of international law, including the 1982 UN Convention on the Law of the Sea”. The ruling has helped clarify what is in accordance with UNCLOS and what is not, and, hence, the legal basis for these consultations and negotiations.

Secondly, the unanimous ruling comprehensively and unambiguously upheld the Philippine case filed in January 2013, denying China’s historic rights claims to over 80 per cent of the South China Sea and the Philippine exclusive economic zone within this sea. It is clear that right is on the side of the Philippines and not China.

Thirdly, it provides legal justification for the maritime rights claims against China of Indonesia, Malaysia and Brunei, and for Vietnam, its maritime rights claims against China in the Spratly Islands. These four littoral states are free-riding beneficiaries of the ruling.

Fourth, by determining that China has no right under UNCLOS to claim any exclusive economic zone overlaps with the Philippines, Malaysia, Indonesia and Brunei, the ruling minimises the scope of the disputes with legal validity that any future ASEAN-China Code of Conduct in the South China Sea would cover.

And fifth, the three major powers in East Asia outside China – the US, Japan and India, – have supported making right might by noting that China and the Philippines are bound by law to respect the ruling, as have Australia and New Zealand.

More on this: The destruction beneath the waves of the South China Sea | Michael Fabinyi

China’s vitriolic rejection of the case, the Tribunal, the presiding justices, and the ruling clearly sets up a test of right versus might. Chinese statements as to the ruling’s non-enforceability, China’s economic importance to Southeast Asian economies, and that China is a bigger and more powerful state are simply references to its comparative might and why this should matter more than what is lawful and right. The same goes for China’s insistence that any recommencement of bilateral talks with the Philippines must ignore the 12 July ruling.

The initial reactions by the new Duterte administration run the risk of proving Del Rosario wrong in his own homeland. Officially, the Philippines only “strongly affirms and respects the outcome of the case before the Permanent Court of Arbitration as an important contribution to the ongoing efforts to pursue a peaceful resolution and management of our disputes.” The new stand-in Foreign Secretary, Perfecto Yasay, muddied the waters further by informing journalists on 27 July that, “the legal basis will now have to give way to the diplomatic processes that we have to pursue precisely for the peaceful resolution of this dispute.”

Vietnam has noted that the ruling is binding on China and the Philippines. Malaysia and Indonesia did not mention the ruling or its effects on their disputes with China in their initial responses. Brunei has remained silent and the joint statement by the ASEAN foreign ministers released on 25 July made no mention of the ruling. Hopefully, these initial reactions from the biggest beneficiaries of the ruling are holding ones while the parties absorb the 497-page judgement and its clear benefits to their interests in the South China Sea.

Conversely, if these preliminary responses are in fact early signs of these states and ASEAN choosing to kowtow to China, by ignoring the ruling and its affirmation of their sovereign interests, then ‘might will make right’.

Such a course of action will see the regional order become accepting of unlawful activities and more unequal by dint of the actions of those that will suffer the most from this inequality and these unlawful activities. As China grows mightier and more confident, such a precedent will only hurt Southeast Asian states more. The 12 July ruling is a game-changer for Southeast Asia and China. The question that remains to be answered is whether it will change in favour of Southeast Asia or China.

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3 Responses

  1. Truthseeker says:

    ASEAN nations have rights–not balls.

  2. lpc1998 says:

    The Philippines’ arbitral tribunal has failed to qualify as an UNCLOS Annex VII arbitral tribunal because it has failed to comply with all the compulsory procedures necessary to constitute it as an UNCLOS Annex VII arbitral tribunal. This is because, apart from the arbitrator appointed by the Philippines, the remaining four arbitrators (including the President of the tribunal) were appointed by the ITLOS President under the provisions of Article 3(e) of Annex VII WITHOUT CONSULTATION WITH CHINA. Article 3(e) of Annex VII expressly requires such consultation:

    Article 3
    Constitution of arbitral tribunal

    “(e) Unless the parties agree that any appointment under subparagraphs (c) and (d) be made by a person or a third State chosen by the parties, the President of the International Tribunal for the Law of the Sea shall make the necessary appointments. If the President is unable to act under this subparagraph or is a national of one of the parties to the dispute, the appointment shall be made by the next senior member of the International Tribunal for the Law of the Sea who is available and is not a national of one of the parties. The appointments referred to in this subparagraph shall be made from the list referred to in article 2 of this Annex within a period of 30 days of the receipt of the request and IN CONSULTATION WITH THE PARTIES. The members so appointed shall be of different nationalities and may not be in the service of, ordinarily resident in the territory of, or nationals of, any of the parties to the dispute.”

    The words “arbitral tribunal” or “tribunal” referred in Articles 5 and 9 of Annex VII of UNCLOS and Article 288(4) of UNCLOS obviously does not mean any tribunal. It has to be a tribunal PROPERLY constituted under Article 3(b), (c), (d) and (e) of Annex VII of UNCLOS (an UNCLOS Annex VII arbitral tribunal).

    The Philippines’ arbitral tribunal cannot invoke any power or authority under these Articles or any other Article under UNCLOS unless it is an UNCLOS Annex VII arbitral tribunal as defined above. For the reason as pointed out above, the Philippines’ arbitral tribunal has failed to be constituted as an UNCLOS Annex VII arbitral tribunal.

    • Mat E says:

      Wrong Ipc1998.

      The PCA Tribunal DID qualify as an UNCLOS Annex VII arbitral tribunal because it DID comply with all the compulsory procedures necessary to constitute it as an UNCLOS Annex VII arbitral tribunal.

      It is your interpretation of UNCLOS Annex VII Article 3(e) that does noes not qualify as being correct.

      China was given plenty of opportunity to participate in the proceedings even before it started, yet Beijing arrogantly refused. By refusing to participate in the proceedings, China forfeited itself the opportunity to help appoint the necessary arbiters to the PCA Tribunal as well as the opportunities to be consulted regarding the matter. This is why the President of the International Tribunal for the Law of the Sea had to make the necessary appointments, allowing the proceedings to continue as a valid UNCLOS Annex VII case.

      Regardless of how important China thinks it is, it’s non-participation did not make the PCA Tribunal’s proceedings any less valid nor did it make the PCA Tribunal’s 12 July ruling any less binding.

      In fact UNCLOS Annex VII Article 9 is quite explicit: “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”

      And as per UNCLOS Annex VII Article 11: “The award shall be final and without appeal”

      Absolutely none of the so-called reasons you gave substantiate your allegations that the PCA Tribunal failed to qualify as an UNCLOS Annex VII arbitral tribunal.

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Cook, Malcolm. 2016. "Right Versus Might In The South China Sea - Policy Forum". Policy Forum. http://www.policyforum.net/right-versus-might-south-china-sea/.

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