A Look Back at a Landmark South China Sea Ruling, Five Years On
7 MIN READJul 12, 2021 | 17:34 GMT
An aerial photograph taken by the Philippine Air Force in November 2003 shows Chinese-built structures near the disputed Spratly Islands in the South China Sea.
On July 12, 2016, an international tribunal in The Hague effectively ruled that China’s sweeping nine-dash line in the South China Sea had no international legal standing under the U.N. Convention on the Law of the Sea (UNCLOS), siding with the Philippines. Ahead of the fifth anniversary of that landmark ruling, I had the opportunity to take part in a semi-formal dialogue between researchers and officials from both the United States and China (notably, Philippine delegates were not invited). The Chinese side set the tone of the meeting. They considered the Philippine case without merit (China boycotted the tribunal), reasserted their historical claims to much of the South China Sea, and not so subtly told the United States to stay out of regional Chinese affairs. There was no dialogue. The meeting was intended to deliver a message that China would continue to assert its sovereignty over several built-up artificial islands and that it saw U.S. moves to challenge these claims or support regional counterclaimants as interference and acts of aggression against China and its core interests.
In the five years since the Permanent Court of Arbitration ruled on the case brought by the Philippines, China’s response has highlighted the challenges of maritime claims in the region, as well as the limitations of international law. Without willing compliance or international enforcement, relative power remains the true arbiter — allowing for Beijing to gain an advantage in the disputed waterway.
A Look Back
Five years on, China continues to ignore the U.N. tribunal ruling, has hardened its positions in the South China Sea, formalized its administrative claims to the territory, and expanded its maritime patrols and exercises. In part, this was facilitated by the Philippines itself. Just two months before the tribunal issued its ruling, Philippine President Rodrigo Duterte took office and rapidly distanced himself from the tribunal ruling and his predecessor’s China policies. In return, Duterte sought Chinese investment and stable relations, which would enable him to focus on his domestic priorities, including his anti-drug campaign and his push for greater federalism as a way to manage the restive southern provinces.
Manila’s shift in tone regarding China also comes amid Duterte’s frequent threats to distance the Philippines from the United States, as well as end the Visiting Forces Agreement (VFA), which is a 70-year-old framework under which U.S. military personnel operate in the Philippines. This means that even if the United States sought to challenge China’s claims on the basis of the tribunal ruling, Washington would find little support from the very country that had brought the case against Beijing to begin with. The negative U.S. response to Duterte’s anti-drug campaign, which was reportedly rife with extrajudicial killings, added to tensions between the two erstwhile allies. While the U.S. Navy continued to carry out Freedom of Navigation Operations (FONOPS) around the Chinese-occupied islets, it did little more to try and dislodge the Chinese forces. Tribunal ruling or not, Beijing remains the de facto controlling power over the disputed islets, and also retains control of related fishing grounds.
The Challenges of International Law
One of the frequent arguments Duterte has made for his China policy and his reluctance to press the tribunal ruling is that Manila simply does not have the capacity to enforce the ruling, and that Washington has failed to step up and shoulder the responsibility. In short, Duterte has essentially said that, while he still holds that the islands and other landmasses in the South China Sea are Philippine territory, Manila is incapable of asserting its claims, and thus it is near futile and self-defeating to undermine relations with China over something that cannot be altered any time soon.
In a similar vein, Duterte has blamed both the previous Philippine administration and the United States for failing to dislodge China in 2012, when Washington helped ease rising tensions around the disputed Scarborough Shoal. Duterte and his supporters have questioned why the United States failed to push Chinese ships out of the shoal after the Philippine ships withdrew. The crux of the argument is that, despite the U.S.-Philippine mutual defense treaty and the superiority of the U.S. Navy at the time, Washington failed to fulfill its responsibilities to its ally. Thus U.S. freedom of navigation operations (FONOPS) are disruptive and cause problems for Manila, but do not include any real benefit.
China wagered that the United States would not risk triggering a larger military engagement over a few spots of rock and sand in a distant sea.
Despite his frequent rhetorical flourishes and occasional foul language, Duterte isn’t entirely off the mark. The inconvenient reality of treaties and international law more broadly is that they are only effective so long as they are enforced or willingly adhered to, or at least perceived by third parties to be actually binding. If China truly believed that the United States would risk its own ships, aircraft and personnel to preserve Manila’s claims to the unoccupied shoals and islets, Beijing may have taken a different path. But China’s experience has led it to assess that while the United States would complain, Washington would not take on the risk of a larger military engagement with China over a few spots of rock and sand in a distant sea, no matter how strategic the overall waterway may be. And the United States reinforced this view by frequently claiming it did not take sides in the Philippines' South China Sea dispute with China, thus failing to assertively back Manila’s claims. Not only was this the longstanding U.S. policy, it also matched the tribunal ruling, which did not assess Philippine sovereignty despite rejecting China’s claims.
The Limitations of U.S. Power
The United States has long had mixed views on treaties, international law and multinational organizations. From its earliest days, U.S. leaders argued against entangling alliances, fearing that such relations could force the United States into economic or military action that would be detrimental to its own domestic interests. Like any large power, the United States has used international systems, laws and organizations when they largely fit U.S. needs and interests, but shied away when they did not. The United States has even failed to ratify UNCLOS, despite that being the basis for the tribunal ruling, as well as part of Washington’s justification for its naval operations in the South China Sea.
For much of the last three decades, even as there were growing voices urging Washington to take heed of China’s rise and its potential challenge to the U.S.-supported international order, U.S. administrations largely sought to entice Beijing through engagement, hoping China would “westernize” by default. While that idea has since lost credence, it does in part explain U.S. reticence in the past to directly challenge China, despite Beijing’s assertive behavior in the South China Sea. In more concrete terms, Washington has also felt that the risk of military escalation with China exceeded the threat posed by each incremental step China took in occupying, building up and arming the islets.
For the past 20 years, the primary U.S. security focus had been on counterterrorism efforts and on the wars in Iraq, Afghanistan and Syria. Great power competition was simply not in vogue, and U.S. training cycles and force deployments reflected the prioritization of non-state actors as the primary security threat. While that pattern is now shifting rapidly, the United States is no longer in a position to prevent Chinese action.
Washington must instead either manage the new reality of power in the South China Sea, or take on the cost of trying to roll back Chinese positions. It’s one thing to stop something from happening, but it’s quite another to reverse an existing reality.
