i. ASEAN and International Law

Chapter IV. Potential Outcomes of China’s Policy

In reality, there could be many potential outcomes as from the present moment can stem an infinite possibilities of the future. However, for the purposes of this essay, the main potential outcomes, specifically as seen through classical realists, will be taken into account.

This chapter revolves around the main actors in the SCS disputes, which is ASEAN, the US and China. There are three corresponding themes that deal with each actor and their respective actions. ASEAN seeks to resolve the disputes through international law, which is the first theme. The US has been counteracting China’s policy with balance of power, which is the second theme. Thirdly, China’s aim is to control the entire SCS and establish a China-led regional order and revive its legitimacy in the process, which is the third and final theme. As such, this chapter attempts to discuss these three themes in connection with the respective actors. The three options will envelop thus a potential outcome of China’s current policy it the SCS.

The first section analyzes ASEAN’s perspective towards the current situation in the SCS and maintains resolution through international law. The second section seeks an understanding of the US’ response to China’s policy and its intention of balancing China’s power. The third section will look at a highly potential outcome of China’s establishment of a China-led regional order and China’s due legitimacy with respect to the SCS.

Essentially, the three outcomes are seen from the lens of classical realists. A final paragraph will evaluate which potential outcome is most likely.

IV. i. ASEAN and International Law

Cronin (2015, p.25) suggests that the “twenty first century should be based on the rule of law, and not spheres of influence as in the nineteenth century.” ASEAN, as a regional bloc of ten nations, has greatly opposed China’s pursuit in the South China Sea and these words sum up ASEAN’s arguments, particularly those of the fiercest claimants. Vietnam and the Philippines have ongoing disputes with China, others include Malaysia and Brunei. The other members, namely Cambodia, Thailand, Laos, Myanmar, Singapore and Indonesia, do not have direct opposition to China’s actions. ASEAN has nevertheless taken a united stance against China, however, there remains a heavy disparity amongst its members.

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In its most recent summits, ASEAN expressed concern about Chinese land reclamation and said that the activity has “eroded trust and confidence and may undermine peace, security and stability in the SCS” (ASEAN Summit 2015a, p.10). Six months later, another ASEAN Summit statement opposed the ‘further militarization of outposts’ in the SCS (ASEAN Summit 2015b, p.24).

INTERNATIONAL LAW

International law has widely been regarded as the answer to solving the disputes, mainly the Sino-Philippine maritime dispute. The Philippines claims the island formations that are within the reach of its Exclusive Economic Zone (EEZ), as indicated by international law under the United Nations Convention on the Law of the Sea (UNCLOS). The Philippines have brought the case to the International Tribunal for the Law of the Sea (ITLOS), the body that arbitrates claims related to UNCLOS, which helps determine maritime rights that nations claim (Sevastopulo 2014). Figure 6 below helps to illustrate maritime law under UNCLOS to put the matter into perspective. However, there is one innate problem with this. China, whereas a signatory of the UNCLOS, has opted out of Article 298 under UNCLOS, which demands ‘compulsory’ conflict resolution under the ITLOS or any other international arbitration such as the International Court of Justice (ICJ) (Raine and Le Mière 2013, p. 16; EEAS 2012, p.4). Thus, China has the ‘right’ of not participating despite the Filipino effort.

Figure 6: UNCLOS Maritime Law

Source: Batongbacal (2015)

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The notion of international law pertinent to the dispute can be divided into two parts. Firstly, there is the international law commanded by the UNCLOS. Secondly, there is the inter-state ‘Code of Conduct’ (COC), which remains to be constructed and signed by the parties involved. In the meantime, the Declaration on the Code of Conduct (DOC) in the SCS has been materialized in 2002 (ASEAN 2002). However, it has been more than a decade and formal negotiations stagnated. The DOC remains a political instrument without any legally binding effect, and with a purpose to maintain the status quo and exercise self-restraint (Dung and Minh 2015, p.67). A COC is being negotiated to provide a legal framework to regulate the conduct in the SCS. China has been evading a final resolution, because it does not see fit the propositions to take away large swathes of its original claims. The presently accepted UNCLOS and corresponding international law cannot be correlated with China’s ambitions in the region. Hence, the conclusion one can discern from this is that international law is yet to be abided by and concerning China’s behaviour this is rather a far-fetched solution. One could observe that the “political space has no exact parallel in East Asian legal and political history” (Samuels 1982, p.51). Classical realists stress that politics supersede legal and moral issues, and this may be a classic case where this poses as reality.

It is worth quoting at length:

“Herein lies Asia’s specific paradox: a high level of economic integration has not given rise to regional institutions that can support the stability required for sustained prosperity. Instead, Asia remains deeply scarred by unsettled disputes, periodic fits of nationalism, and contested borders, all of which tend to be amplified by apprehension stemming from the asymmetric rise of some of its powers. Regional integration is a recipe for long-term stability in Asia, and a second line of engagement for the EU. In Europe, once torn apart by war, armed conflict among EU member states is now almost unthinkable. The EU’s institutional architecture facilitated the pivot from devastating and recurrent wars to peace and prosperity”

(Solana 2013, p.1).

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Whereas international law, its intergovernmental organizations and regional integration has flourished in the West, the paradox in Asia is such that behind the economic integration and regional prosperity lies a shadow of rivalry, mistrust and competition. A statement from the European External Action Service (EEAS) comments on such an ‘Asian paradox’:

“while the region’s economy is buoyed by integration and sense of optimism, strategic competition among regional powers is feeding concern about a fragmented security environment” (EEAS 2015, p.6). Figure 7 below demonstrates such negative views and concern about China’s military growth amongst its neighbors, particularly Japan, S. Korea and the Philippines.

Figure 7: Attitude Towards China

Source: PEW Research Center (2013)

International law can only work if all parties agree to those ‘laws’ that objectify agreements and the conduct of all stakeholders in the international community. However, in politics the ‘objective laws of human nature’ have taken form in such a way that China, a rising

‘revisionist’ power, has chosen to pursue its own interests at the expense of a lesser international law that would disrupt its own higher ground. What has then been a simultaneous repercussion of such denial of international law? The following section

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discusses the concept of balance of power, an outcome of that rather negative view of China’s rising power.