After the Ruling — What's Next in the South China Sea?

Asia Society Policy Institute President Kevin Rudd speaks with Charlie Rose, an Asia Society Trustee, on July 13, 2016 about U.S.-China relations and the recent South China Sea ruling by The Hague.

The long-simmering dispute over China's behavior in the South China Sea reached a milestone on Tuesday, as an international tribunal in The Hague ruled that Beijing's maritime claims had no basis in international law. The decision resolves a case first brought by the Philippines in 2013, but will have implications for the East Asian region as a whole — as well as for the relationship between China and the United States.

The tribunal's rebuke of China was comprehensive. The ruling stipulated that the disputed islands claimed by China did not fall under the exclusive economic zone of any country, that China violated the Philippines' own sovereign rights, and that China's land reclamation in the maritime area damaged the local environment. Perhaps most importantly, the tribunal ruled that China's "nine-dash line" — which delineates a broad swathe of maritime area used by Beijing as historic justification for its claims — had no legal basis.

The full text of the Chinese government's statement in response to the ruling can be found here. Click here to read the statement issued by Philippine Foreign Secretary Perfecto Yasay.

In order to distill the significance of Tuesday's ruling, Asia Blog turned to experts in the Asia Society community for their thoughts:

Orville Schell — Arthur Ross Director of the Center on U.S.-China Relations

The ruling just handed down by the Hague’s Permanent Court of Arbitration in response to the complaint made by the Philippines after the seizure of Scarborough Shoal by the PRC in 2012 now looks destined to radically alter not only China’s interaction with its Asian neighbors, but with the U.S. as well. Because the ruling so undermines China’s claims in the South China Sea region, Beijing finds itself at a critical juncture point: It can either adjust course and seek accommodation with various claimants in these maritime disputes that have put it at odds with not only the Philippines, but with Vietnam, Malaysia, Brunei, and now even Indonesia, or it can double down and become even more obdurate.

What mitigates against the likelihood that Beijing will become less obdurate and more flexible in its approach to the South China Sea is the reality that having identified these contested islands and rocks as part of China’s so-called “core interest,” it has become trapped by its own conviction that disputes involving the question of Chinese sovereignty are never negotiable. As a result, China’s neighbors and the U.S. — which has treaty obligations with the Philippines, Japan, and South Korea, and growing partnerships with other South East Asian countries like Singapore and Vietnam — must be ready for a much more rigid, even belligerent, Chinese posture. It will, of course, be the U.S., who will be most immediately challenged by the Hague’s ruling and China’s response. For having had the 7th Fleet long deployed in Asia and playing an important role in assuring freedom navigation in the region, the White House will be confronted by some very difficult decisions about how far it wants to go in confronting a potentially aggrieved and even more aggressive China.

This will be a delicate high-wire act that must also take into account the importance of the larger U.S.-China relationship and the need for cooperation on other crucial issues such as nuclear proliferation (and particular the fate of North Korea's nuclear arsenal), climate change, global trade and pandemics.

How these other important issues can compete with what surely will be a vitriolic Chinese reaction is far from certain. But suffice it to say, the interaction over the next few weeks between China, the U.S. and its Pacific neighbors will be crucial, for it will help cast the die for future relations in the whole region.

Tom Nagorski — Executive Vice President, Asia Society

I was struck by language in the ruling that pertained to the environmental damage done in these waters. This was an often-overlooked element in the Philippines' case — overlooked because the South China Sea has rightly been seen primarily as a major geopolitical and strategic issue. The ruling finds that the Chinese have inflicted "irreparable" damage to the environment in the course of its building up the various islands, with airstrips and so on. That's damage done to the coral reef environment, and what the tribunal said was harm "on a substantial scale" to marine life in the area.

This is important because China has actually become a major voice on global climate and other environmental issues, and also because this part of the ruling will attract attention and criticism from those for whom the environment is more important, or more interesting, than the geo-strategic question of who controls the seas.

Phillipp Ivanov — CEO, Asia Society Australia

The ruling is a test of the Asia-Pacific security architecture and more broadly the regional relations and the global order. We are now entering into a period of great risk, as China plans its immediate response and longer-term strategy for the South China Sea. In the days and months ahead, it will be important to ensure that the dialogue with China — however difficult and emotionally charged it will be  — continues, and the Asia Pacific powers, including Australia, ASEAN and the United States all have a role to play in it. The diplomatic engagement needs to intensify, not retreat.

It is clear that China will feel isolated, and there is a clear danger of an emotional response to the ruling and miscalculations leading to catastrophic consequences for the region. However, it is unlikely that China will alter its plans of expanding its commercial and military footprint on the disputed islands, and in the immediate term we may see the escalation of its diplomatic and rhetorical engagement on the issue.

The key question will be whether the ruling will have any longer-term impact on China’s South China Sea strategy and calculations for other disputed territories — for example, in the East China Sea. The other major consequence of the ruling and China’s rejection of it is that it will reinforce the perceptions of hardline protagonists of the current world order, from Moscow to Beijing, that the current international system (and its legal infrastructure) is created by the United States and allies and therefore needs to be overhauled. 

Jessica Chen Weiss — Associate Professor of Government, Cornell University (as told to ChinaFile)

Our words matter now as much as our actions. How the United States and the Philippines react will also influence how China responds. The Chinese government and media have repeatedly rejected the tribunal’s jurisdiction in anticipation of the ruling, creating ample space for China to maneuver. On WeChat, Chinese state media are stressing that the best response is to ignore the verdict.

So far, Xi Jinping’s government has been highly effective at both stoking and quashing nationalist sentiment over the South China Sea, as I note in a recent book on China’s management of anti-foreign protests. The government has fanned patriotic sentiment through the media but kept it online rather than in the streets. Chinese police intervened when demonstrators sought to protest over Scarborough Shoal in 2012 and repressed anti-Vietnamese demonstrations after Vietnamese protests killed several Chinese workers during the oil rig standoff in 2014. Protests by Vietnamese and Filipino activists have been met with Chinese scorn rather than countermeasures, as I write in a journal article published last week in Security Studies.

If we now see Chinese protests over U.S. or other countries’ actions to enforce the ruling, we should take them seriously as a sign of China’s resolve. However the U.S. and its allies proceed, a quiet approach — actions with a minimum of publicity and a clear legal rationale — would be most effective. The more we trumpet China’s defeat or loss of face, the more domestic pressure or temptation the government will feel to respond with more than bluster.

Lindsey Ford — Director of Asian Security and Richard Holbrooke Fellow, Asia Society Policy Institute

The court’s ruling surprised observers. Many had anticipated a decision narrowly focused on the technical issues inherent to the particular case. Instead, the court issued a sweeping ruling that was more wide-reaching than expected, with implications for maritime nations across the region. The court has clearly limited the ability of any claimant to pursue vast exclusive economic rights around many of the Spratly’s small rocks and shoals. And most notably, the court issued the first international legal ruling on China’s "nine-dash line” claim.

Today’s ruling in many ways raises more questions than answers, in particular, “what now?” While historic, the court’s ruling is not enforceable and it leaves the thorniest issue of all — sovereignty — still on the table. China has consistently made clear that it does not believe the court has jurisdiction in this case and will not be bound by its findings. Other claimants, such as Vietnam and Malaysia, have been closely watching the court’s proceedings and may now seriously consider initiating similar cases of their own. So while today’s ruling brings clarity to certain legal principles, the way ahead in the South China Sea is as murky as ever.

All nations that rely upon the South China Sea have an interest in seeing these disputes settled peacefully. Whether the way ahead involves bilateral negotiations, a shared code of conduct, or further arbitration, the continued peaceful use of this vital international waterway is critical for the entire international community.

Victor Andres C. Manhit — Founder and Managing Director of the Stratbase Group and President of the ADR Institute

Now that the Arbitral Tribunal has released its decision on the case lodged by the Philippines against China, the long-disputed waters in the South China Sea have received new light. Part of the difficulty in achieving permanent resolution has been the lack of clarity over some countries' specific claims. One major factor was China's "nine-dash line," which covers nearly the entire sea and overlaps the claims of every single Southeast Asian country involved. For years, China refused to clarify the meaning of its line. At last, the court ruled that there was no legal basis for China to claim historic rights to resources within the waters using the nine-dash line and that, further, China had violated the Philippines' sovereign rights in its exclusive economic zone.

Just as importantly, the court ruled that no land feature in the Spratlys could be entitled to an exclusive economic zone. This means that no country occupying a feature in the Spratlys can claim an exclusive economic zone that overlaps with that of the Philippines. This is a great success for the Philippines in its effort to protect its sovereign rights.

For now, the Duterte administration has decided to study the decision at length before making its next move. President Duterte's decision will first have impact at the July 21-26 series of ASEAN meetings, where the organization will also meet its dialogue partners at the ASEAN Regional Forum and the East Asia Summit. In the meantime, countries have reaffirmed their support for the arbitration process and their view that the ruling is binding on both parties. Of course, China has said that it will disregard the ruling, and many expect that it may demonstrate its defiance of the ruling in the coming weeks in any number of ways.

In our view, Manila should immediately set the tone of what is to follow. In the days ahead, the country should continue to advocate that all states, including China, must abide by the terms of the ruling and that all claimants should avoid any activity that could worsen tensions in the region. It is good that many countries have already indicated their support for the arbitration process and for the peaceful resolution of the disputes.

Anthony Amunategui Abad — CEO/Managing Director, TradeAdvisors; Asia Society Philippines Partner

From a legal perspective, China has no one else to blame. Most of China’s procedural errors highlighted in the 500 page ruling are China’s alone: notwithstanding a highly irregular challenge to the jurisdiction of the Permanent Court of Arbitration, the tribunal still went on to require that the Philippines establish its claims. On the other hand, China insisted throughout the course of the proceedings that it was not going to participate or recognize any judgment or award rendered by the tribunal.

The ruling itself is significant as a declaration of a tribunal definitively interpreting the provisions of the UN Convention on the Law of the Sea, which China and the Philippines are states-parties.

Beijing will try to keep the question a political one. It is easy to underestimate the significance of the disputed areas to the Chinese polity. In this the Philippines is being portrayed in state media as an extension of the United States, and by further extension, all the antagonists in the Century of Humiliation. Interestingly, the reaction from Manila is more subdued. Foreign Affairs Secretary Perfecto Yasay has called for restraint and sobriety; President Duterte has kept his silence but has called his Cabinet.

Other neighboring countries with a stake in the disputed areas have called for sobriety in the wake of the ruling; Malaysia, Singapore, and Indonesia have called on the parties to use all legal and diplomatic means to resolve the dispute, in accord with the 2002 ASEAN Declaration on the Conduct of Parties in the South China Sea. In contrast, Tokyo, which has its own territorial dispute with Beijing, has called in Beijing to respect the award as binding. How these countries use the ruling as leverage in talks with Beijing will also prove as interesting as the ruling itself.

About the Author

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Matt Schiavenza is the Assistant Director of Content at Asia Society. His work has appeared at The Atlantic, The Daily Beast, The New Republic, Fortune, and strategy + business among other publications.