China’s Rise, South China Sea, and Rules-Based International Order: A View From the Philippines

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China’s Rise, South China Sea, and Rules-Based International Order: A View From the Philippines

Jay L. Batongbacal, a professor at the University of the Philippines College of Law, on the South China Sea disputes and international law.

China’s Rise, South China Sea, and Rules-Based International Order: A View From the Philippines

In this March 31, 2021, file photo provided by the National Task Force-West Philippine Sea, Chinese vessels are moored at Whitsun Reef, South China Sea.

Credit: National Task Force-West Philippine Sea via AP, File

Is China a revisionist power challenging the rules-based international order? How are China’s Asian neighbors dealing with China’s rise, including its actions in the South China Sea? For a perspective on these and other matters, Jongsoo Lee interviews Jay L. Batongbacal, a professor at the University of the Philippines College of Law and the director of the university’s Institute for Maritime Affairs and Law of the Sea.

It has been five years since the ruling in the Philippines vs. China arbitration case brought under the United Nations Convention on the Law of the Sea (UNCLOS).  How would you evaluate the significance and the impact of the ruling?

The South China Sea Arbitration Award is the most legally significant development in the long-running, complicated, and multi-party territorial and maritime disputes in the South China Sea (SCS). It shows the way forward to a fair and equitable allocation of jurisdiction and resources of a common sea area between several competing nations, in accordance with the terms of one of the most important global multilateral agreements of modern times. It properly balances the interests of the regional claimants not only between themselves, but also between them and external powers that have their own interests in access, mobility, and participation in the use of that enclosed sea area.

In your opinion, did the Philippines make the right choice by participating in the arbitration case?  What has the Philippines gained or lost from the participation?  

Although I personally did not agree with the full extent of what was submitted for arbitration, as I would have preferred a more focused case, overall the right choice was made in bringing UNCLOS to weigh in on the issues, and establish legal guidance for what should be the ideal resolution of the disputing parties’ competing maritime claims. By submitting the threshold issue of maritime entitlement to an independent tribunal’s judgment, the Philippines has established firm legal support for its refusal to abide by China’s demands against the independent use and management of its own offshore resources, and secured its legal and moral position should China become more interventionist and aggressive at sea. In the fifth year since the arbitration, more nations have come forth to support the Award against China’s insistence on its illegal and excessive claims, which is important because it further reinforces the Philippines’ position in dealing diplomatically with the disputes.

But while the Philippines has not lost anything legally, the sad reality is that it has undoubtedly lost, and probably still is losing, physical resources and habitats on account of China’s retaliatory behavior and destructive activities, such as the construction of artificial islands and the deliberate deployment of its ravenous fishing fleets deeper into the exclusive economic zone. For this reason, the challenge against the rule of law in the SCS has also become somewhat more intense.

Is the ruling likely to encourage or discourage any future arbitration case against China in the South China Sea dispute or in other disputes involving China?

It is difficult to say, since each country is a different political, economic, and legal situation vis-à-vis China and must weigh its own interests, strategies, and options as events unfold in the specific contested area. At the very least, however, the case is instructive as a proof-of-concept exercise in that the current state of UNCLOS and international maritime law makes it possible to engage compulsory dispute settlement mechanisms and states do not need to be permanently deadlocked in maritime disputes. The possibility of legal resolution adds to the menu of diplomatic strategies and options available especially to smaller Southeast Asian states as they try to manage and deal with an increasingly assertive regional power.

In your view, is China a revisionist power challenging the rules-based international order?

Yes, although the revisions it seeks at this point appear to be modest, incremental, and exceptionalist insofar as the SCS is concerned. China’s excessive claim based on alleged historic rights or titles or facts clearly requires a special case and exceptional international norms in order to work. Its actions point toward a need to establish extensive power and dominion – practically equivalent to the ability to exercise absolute sovereignty – over the SCS (and also the East China Sea). This means the subordination of smaller states’ legitimate rights and interests in the enclosed sea area, denial of their exclusive sovereign rights and jurisdiction in their maritime zones, and recognition of a hierarchical order where China’s maritime interests preempt and reign supreme over those of her neighbors. This means an exception to the general rules of UNCLOS and the creation of regional international law that provides for a different set of norms governing state entitlements and jurisdictions in the SCS.

Is there any plausible alternative to the rules-based international order in the Indo-Pacific that the Philippines or others in the region would find acceptable?  

No. UNCLOS and the system of international maritime law built around it is the only system that is acceptable to the ASEAN member states and the region. This is evinced by the very frequent and regular repetition of the need for States to abide by international law “including UNCLOS.” The Philippines and ASEAN are committed to UNCLOS and the prevailing system as the principal basis for the peaceful settlement of their current disputes.

What do you think is China’s vision of its place and role in the Indo-Pacific and in the world?  Does China have what it takes to lead its region or the world?  Does it have enough “soft power”?

China seeks pre-eminence and to protect its own interests, which now include securing its maritime trade routes and perceived spaces. I think that common comparisons to re-establishing the Middle Kingdom of old are slightly misplaced, as modern times and international relations provide a totally different environment and context for the conduct of China’s foreign relations. But it is clear that China seeks to elevate itself as a pre-eminent and pre-dominant power to which other countries should defer. The preoccupation with always demonstrating strength and the inability to compromise by shedding excessive and arbitrary claims will work against its being recognized as a regional or world leader, because other countries will always see China as working for itself and not necessarily for others’ benefit also. And if current suspicions and negative views of China at governmental and private levels are any indication, it clearly has not yet generated sufficient “soft power” to change these perceptions.

In your view, what are China’s policy objectives in the South China Sea and the East China Sea?  And how can China pursue those objectives while maintaining good relations with its Asian neighbors and the United States?

China’s policy objectives in the South China and East China Seas are driven primarily by strategic and military interests first and economic interests second. It needs to dominate the SCS in military and paramilitary terms as part of its strategy to protect what it believes to be its vulnerable southern coastline from potential threats. It requires preemptive, if not exclusive, access to economic resources in the SCS in order to address the needs of coastal populations and keep their local economies running. It will be extremely difficult to pursue these objectives with its Asian neighbors and the U.S. because these require exclusive access to and ultimate control over the vast sea area, as well as the permanent retreat of the U.S. and other external powers. None of these other countries is about to give up their legally established rights, and this will always collide with China’s exclusionary expansion.

How would you characterize the current state of relations between China and the Philippines? And how would you assess its future prospects?

Although the Philippines and China initially sought to portray Philippine-China relations as another “golden age” similar to the state of relations under the administration of Gloria Macapagal-Arroyo, it is probably more appropriate to label it as a failed promise with dashed expectations, in the same way that China’s $2 billion worth of promises in infrastructure failed to materialize. Although China’s assistance and investments increased, they still lag behind those of the Philippines’ traditional development partners. Negative public opinion against China has remained basically the same, if not gotten worse, during Duterte’s term, and the pandemic wiped out any potential impact of whatever was left of China’s economic initiatives in the Philippines. The SCS disputes still constantly serve as a reminder to the public that China’s friendship comes at a great cost with little benefit. This does not bode well for the prospects of future relations.

Where do things stand between the Philippines and the ASEAN? Can the ASEAN as a group deal effectively vis-a-vis China in the South China Sea dispute or on any other issue?    

The Philippines still tries to work with ASEAN through negotiations on the Code of Conduct for South China Sea. However, diplomats must do so within the parameters set by the political leadership, which unfortunately has not been as consistent through the different administrations. At its core, ASEAN was not designed to deal with regional political and security issues; the founding principles of non-interference in others’ domestic affairs and the sacrosanct value of national sovereignty hinder the compromises necessary for member states to fully invest in cooperative arrangements on matters of mutual concern. Problems tend to have to nearly cause a national embarrassment before the concerned member states realize the need for cooperation. But when they do, the outcomes tend to also become quite successful and effective. If ever the ASEAN claimant countries realize that they need to get on the same page and agree upon a common course of action on China or the SCS, it would probably have reasonably good chances of success. The problem, of course, is that until then, divisive tactics still tend to effectively hinder movement toward joint action.

Please comment on the role of the United States in the Indo-Pacific, including in the South China Sea. Is the United States effectively addressing the challenges posed by China? If not, how can it play a more effective role?

The U.S. has only started to recover from the damage wrought by Trump’s inattention and retreat from Asia and his preoccupation with the trade war with China. It will probably take well into next year before the U.S. is able to mount an effective multilateral strategy to address the many dimensions of China’s challenges to the regional and global order. China has a good head-start in economic, military, and political arenas but has suffered setbacks due to the pandemic and to self-inflicted wounds on account of its over-bearing diplomacy.

The U.S. is the only credible threat to China in many respects and can play a more effective role by re-establishing its leadership in the world community. But to do so, it must return to the values that it promoted in the post-World War II reconstruction, which enabled the emergence and growth of many independent nation states aspiring for their own identity, self-determination, and equal place in the international community. China’s vision for itself and the international community is an extension of its authoritarian political system, which would be a step back from the gains achieved since 1945.

What is the Philippines’ position on the “Quad” (i.e., the Quadrilateral Security Dialogue between the U.S., Japan, India and Australia)?  Is the Philippines interested in seeking closer ties with the Quad?

The Philippines has yet to enunciate a clear policy direction for the Quad. It formally abides by the ASEAN Outlook on the Indo-Pacific, which views the Quad with a cautious eye and expresses ASEAN’s reluctance and uncertainty about the substance, trajectory, and purpose of the “Indo-Pacific” strategy and perspective as more recently defined by the Quad. ASEAN as a whole does not welcome turning the region into an area of geopolitical competition, despite individual members’ geopolitical partiality, and is wary of the Quad’s potential for creating arenas for conflict. Yet, the Philippines has a formal alliance with the U.S., security partnerships with Japan and Australia, and is exploring possible ties with India. In the absence of a clearer definition of the Quad formation, though, the Philippines will likely not be as interested or purposive in its policies on the Quad or the greater Indo-Pacific as a whole, as it would be with its more concrete and immediate concerns with the SCS disputes. The Quad is still rather abstract in a sense, which makes it less easy for Philippine decision-makers to mount a concrete policy response.