ASEAN and China at a crossroads after South China Sea ruling

Author: Sourabh Gupta, ICAS

Almost 30 years to the day that a young, Harvard-trained American lawyer won a famous judgment at the International Court of Justice (ICJ) against the United States, Paul S Reichler pulled off another momentous victory at The Hague. This time the judgment was against China for having breached its international treaty obligations in the South China Sea.

Washington refused to honour the 1986 award, citing Managua’s selective application of the law, the highly charged political nature of the case and the ICJ’s overreach in asserting jurisdiction. Later that year, it cast the sole veto against a UN Security Council draft resolution calling for full and immediate compliance with the judgment. China was one of 11 states on the Council to vote in favour.

Beijing now restates each of the accusations made by the defence that day. Yet one hopes that it will set a better example of compliance than Washington. It is also in its enlightened self-interest to do so.

China’s emerging policy approach is one of non-acceptance of the award while supporting escalation control on the ground. This is coupled with an offer to negotiate with the Philippines. The political cost–benefit calculus underlying this policy will gradually but decisively shift against China with each passing month — especially as Manila forces the issue in order to collect the benefits conferred by the award.

Hanoi too stands poised to force claims that it enjoys traditional fishing rights within the territorial sea of the Paracel Islands. It can also claim, pointing to the award, that none of the high-tide features there are fully entitled islands, and that, as a result, the features cannot generate their own exclusive economic zones (EEZs).

China’s favoured ‘dual-track’ approach holds that disputes should be resolved through talks between directly concerned parties, while China and ASEAN countries should jointly pursue stability in the South China Sea. In light of the ruling, China must discreetly implement an ‘early harvest’ set of compliant actions within this ‘dual-track’ framework. These could include allowing re-entry of Filipino traditional fishermen to the territorial sea of the Scarborough Shoal and China withdrawing its paramilitary presence from the Second Thomas Shoal area.

Beijing should also seize this opportunity to clarify the geographic limits of its ‘relevant waters’ claim in the South China Sea and the functional nature of the ‘historic right’ of access that it seeks in these waters.

ASEAN too must brace for the implications of the award, particularly on the security front. The decision to annul all extended maritime claims associated with China’s land features on the Philippines’ continental shelf is effectively an endorsement of a 2009 submission filed by Malaysia and Vietnam to the Commission on the Limits of the Continental Shelf. That submission also implied that none of the features in the Spratlys group were capable of generating EEZs or continental shelf rights.

That filing took China by surprise and touched off a protest note featuring the nine-dash line. The Tribunal’s ruling will encounter a similar, if not greater show of resolve by Beijing, both on the table and at sea.

Sovereignty-linked issues of jurisdiction have always been tied to a larger political calculus of stability and good neighbourliness. China’s rulers have not been shy in calibrating their stance between a hardline and a flexible one to suit the strategic circumstances at hand. Should Philippine ‘armed forces’ or ‘public vessels’ provide escort to private efforts to restart oil and gas development on its continental shelf, the United States could be drawn into the line of fire. This would have cascading implications for peace and stability in the South China Sea.

The Tribunal’s award brings into question the call to expeditiously conclude a China–ASEAN ‘Code of Conduct’ (COC). The area of application of the COC’s rules was premised on the existence of unresolved maritime boundary areas of concerned parties in the South China Sea. Having produced a de facto delimitation of the China–Philippines maritime boundary (and furnished principles for the China–Vietnam one too), the Tribunal has effectively undercut the raison d’être that sustains the envisaged code.

Both ASEAN and China would be better off reframing their COC interactions to a trimmed-down dialogue on preventive mechanisms that set and stabilise the rules of engagement and communication for their paramilitaries. Such a code could be framed along the lines of the multinational Code for Unplanned Encounters at Sea.

The scope for functional cooperation in the South China Sea has been set back in no uncertain terms. Had Itu Aba been ruled a fully entitled island, it could have facilitated a basis for oil and gas joint development in the overlapping water areas. With no geographic overlap to contend with, China’s principle of ‘shelving differences and seeking joint development’ has become a hollow slogan. There are no differences of entitled rights left to shelve.

The contours of functional cooperation will need to evolve from bilateral actions to subregional activities in cross-cutting areas. Such activities could include environmental protection, maritime search and rescue, and cooperation against piracy and transnational crime.

The arbitration has ripped apart the deliberate ambiguity that has at times helpfully spurred the search for win–win solutions to the region’s overlapping challenges at its peripheries. Yet another Asian frontier has now been transformed, to quote Lord Curzon, into a ‘razor’s edge on which hang suspended the modern issues of war or peace’. The tenuous quiet in the immediate wake of the award will not last.

As China and ASEAN gingerly mould a ‘new normal’ in the South China Sea, they stand at an important crossroads. They can either advocate for exclusivist answers to the challenges in their designated maritime zones — the littoral states’ preference. Or they can throw their weight behind comprehensive and overarching cooperative frameworks — China’s preference — that secure peace and stability. Whatever their chosen path, China and ASEAN must first form an important consensus on this point. Papering over this choice will be harder than papering over the language in their summit communiques. Muddling through is not an option.


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