'New normal' after South China Sea ruling

'New normal' after South China Sea ruling

Never shy about having pun, Philippines activists are calling for a CHexit — China out of the South China Sea. (Reuters photo)
Never shy about having pun, Philippines activists are calling for a CHexit — China out of the South China Sea. (Reuters photo)

However the Philippines-China verdict is viewed and whatever its immediate consequences, the landmark ruling by the dispute-settling Arbitral Tribunal under the United Nations Convention on the Law of the Sea will bring about a "new normal" in Southeast Asia that portends more regional tensions and potential conflict in the longer term. This "new normal" means that the status quo ex ante prior to Philippines' recourse to the Tribunal in January 2013 will not be restored.

China will effectively control what it has claimed and constructed in the South China Sea since, even though the Tribunal's ruling indicates otherwise. It behoves Beijing now as an aspiring global leader to be satisfied with getting away with its "sea grab" and start to compromise with the 10-member Asean by working towards a rules-based Code of Conduct for Parties in the South China Sea (CoC). In fact, there has never been a better time in recent years of South China Sea tensions for Beijing to participate in a regional framework because it has more friendly neighbours than in the past. Even President Rodrigo Duterte of the Philippines, the country that took China to the international court, takes a conciliatory stand vis-à-vis China. If China misses this chance to make peace with Asean, it may not get another opportunity with as much promise.

For Asean, particularly the Philippines, the favourable ruling may prove counterproductive in the longer term unless the resilient but divided regional organisation can close ranks and put up a united and persuasive stand to rein in China's maritime claims. Asean's unity, in fact, is indispensable to persuade China to play ball in regional agreements.

Thitinan Pongsudhirak is associate professor and director of the Institute of Security and International Studies, Faculty of Political Science, Chulalongkorn University.

As in most tit-for-tat spats of this kind, culpability in the Philippines-China conflict is subjective. Beijing has insisted that Manila started the legal process by petitioning the Tribunal in violation of the 2002 Declaration on the Conduct of Parties in the South China Sea, an Asean-China goodwill document to promote mutual trust and confidence. Manila has fingered China's seizure of Scarborough Shoal near Luzon Island in July 2012 that sparked the row.

China wanted a negotiated outcome on a bilateral basis, while the Philippines internationalised it at the UNCLOS level and also with the United States, its patron and longtime treaty ally. In turn, the Obama Administration's widening "pivot to Asia" at the time reinforced Beijing's fear of a strategic encirclement by America's allies and partners in the East and South China seas.

China's ensuing construction of a string of artificial islands in the South China Sea quickly raised regional tensions. Pressed by the Philippines at the Tribunal and under diplomatic pressure from maritime Asean claimant states such as Indonesia, Malaysia and Vietnam, China saw fit to cash in some of its patron-client ties with Cambodia and Laos, two small mainland Asean states, for diplomatic backup. It also kept non-claimant Myanmar and Thailand on side as these two larger mainland countries have had to rely on China's support more than Asean's for domestic reasons. China has also enticed tiny Brunei to take its side.

Beijing's manoeuvres have led to unprecedented disarray within Asean, unable to take a unified position on the South China Sea over the past several years. Without unity, Asean cannot play its traditional central role in Asia's regional architecture-building. Without a regional architecture to ensure order and stability, Asia will only see more tension and confrontation.

In unmistakable terms, the Tribunal ruled on the legal status of all land features in the Philippines' 15 submissions, from submerged reefs that cannot qualify as rocks and from rocks that cannot be converted into islands, each with its own maritime entitlements. As if to add insult to injury, the ruling also reprimanded China for the environmental damage it has caused during the interim of land build-up in the sea. The Philippines did not win all that it asked for but China implicitly won nothing, even though it took no part in the process. The Tribunal's landmark decision has universally dashed China's aims to apply its "nine-dash-line" map from 1947 based on "historic rights" of owning more than 80% of the South China Sea. The Tribunal may have put a legal end to China's controversial map.

What happens after the ruling is now more important than what preceded it. The ruling will test Asean's unity more than ever. Rather than a joint statement from Asean, individual country positions are more likely in the immediate aftermath. Asean's litmus test will come in late July when its 49th foreign ministers' meeting will be expected to produce a joint statement and a united front on the Tribunal's ruling against China ahead of the Asean-related summits in early September. A lot of posturing and grandstanding will be on display but another absence of a joint communique with a clear reference on the South China Sea in light of the Tribunal's ruling will mean that Asean is structurally stuck and divided between sea and land, between claimants and non-claimants, sympathetic toward China and otherwise. Never has Asean unity and cohesion been more needed than now after the Philippines' legal victory over China.

It is now critical that the Philippines does not overplay its hand by mobilising international sentiment or tapping its US alliance. Manila would do well for Asean-China relations by backing off despite its legal upper hand. The range of middle powers in the region, from Japan and South Korea to Australia, should also refrain from taking advantage of the Tribunal's decision to undermine China.

Beijing deserves to be given some diplomatic space whereby Singapore as country coordinator can perhaps play a mediating role. Ultimately, the ruling can be taken as an opportunity for Asean and China to resolve their differences by coming up with the CoC. China cannot win unilaterally, and it already got a lot of seized and constructed land areas in the South China Sea.

Beijing should know after the Tribunal's ruling that its actions that violate maritime rights and sovereignty of neighbours come with a high cost that is simply not worth it. China's longer-term ambition to be a top global superpower has entailed the establishment of new vehicles such as the Asian Infrastructure Investment Bank and the One Belt, One Road initiative.

To entice others to play by some of its new rules and plans, Beijing has to avoid petty spats with smaller neighbours. To be as big in the global pecking order as China aspires requires a big heart and demonstrated benevolence.

Thitinan Pongsudhirak

A PROFESSOR AT CHULALONGKORN UNIVERSITY

A professor and director of the Institute of Security and International Studies at Chulalongkorn University’s Faculty of Political Science, he earned a PhD from the London School of Economics with a top dissertation prize in 2002. Recognised for excellence in opinion writing from Society of Publishers in Asia, his views and articles have been published widely by local and international media.

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