Introduction
During the 1997 Conference of ASEAN Experts on the Law of the Sea, the Philippine representative, then Philippine National Security Adviser, Jose Almonte, declared, “Military weak states like the Philippines must – of necessity – put their faith in a world order governed by international law; guided by a global code of ethics, and inspired by shared normal values” (Ang, 2019). Although reflective of the long-standing policy of the Philippines on maritime issues confronting the South China Sea, this declaration was given within the context of the occupation of Mischief Reef, a feature claimed by the Philippines in the Spratly Islands, by the People’s Republic of China. This policy reflects largely the imbalance of power dynamics in the South China Sea. China’s then economically and militarily growing might rendered the Philippines military capability inconsequential.
Hence, in 2013, after the standoff with China over Scarborough Shoal—a maritime feature located 135 miles off the coast of the province of Zambales in Luzon—the Philippines, putting faith in the might of international law, brought the matter to the Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). The Philippines filed a case against China to question inter alia the legality of China’s sweeping claim in the South China Sea, and to determine the legal status of certain maritime features in said sea (Philippines vs. China, 2016). This bold step by the Philippines, suing and stunning a juggernaut, took place after almost two decades of efforts to settle the matters through diplomatic channels. Diplomacy fell short in addressing the growing differences of the contending parties, especially the widening conflicting claims between the Philippines and China.
From 2013 onwards, China became even more aggressive and started to significantly alter the face of the South China Sea by building artificial islands and equipping these islands with military capabilities (Grossman, 2020); thus, exacerbating the tension between and among the littoral States of the highly contested sea.
In 2016, after the Philippines presented its case at The Hague, the Netherlands, in the absence of China, who chose not to participate from the outset of the case, the Arbitral Tribunal rendered a judgment pronouncing, among other judgements, that China’s nine-dash line has no basis in international law; that none of the Spratly Islands were capable of generating extended maritime zones and none of the features claimed by China were capable of generating an exclusive economic zone (EEZ); and that China had violated the Philippines’ sovereign rights in its EEZ by interfering with the Philippine fishing and petroleum exploration, constructing artificial islands, and failing to prevent Chinese fishermen from fishing in the zone (Philippines vs. China, 2016; Carpio, 2017).
It was an overwhelming victory for the Philippines as most would claim, but others were quick to add that it was a success for international law as well. After all, Manila has claimed, through then Philippine Foreign Affairs Secretary Alberto del Rosario (2015), that the case is not only for the Philippines, but also for the rule of law in international relations. He further said that bringing the case to the Arbitral Tribunal “allow[s] the weak to challenge the powerful on an equal footing, confident in the conviction that principles trump power; that law triumphs over force; and that right prevails over might.”
With this foregoing backdrop, this article will attempt to answer the following questions:
(a) How is peace in the South China Sea being shaped by China’s behavior and the dynamics of the US-China relationship?
(b) What are the challenges to achieving peace in the South China Sea?
(c) What are the pathways to peace in the South China Sea?
Discussions on these questions will revolve around issues and concerns that directly or indirectly affect the interests of the Philippines.
Austinian Imperatival Handicap?
The judgment of the Arbitral Tribunal has surely earned its place in the maritime legal annals, but more than five years after it was rendered, it has so far done little or nothing to transform the South China Sea into a true zone of peace. The order within the South China Sea remains fragile due to the security dilemma espoused by the presence of highly militarized artificial islands built by China and China’s incessant encroachment into the maritime domains of its neighboring countries, particularly the Philippines.
In the context of the South China Sea dispute, China’s indifference to international law, in general, and international judicial organs, in particular, provides a vivid case of an Austinian imperatival handicap (D’Aspremont, 2015). This situation inevitably engenders these questions: can international law truly play a role in managing the aggressive behavior of China in the South China Sea in order to achieve genuinely peaceful coexistence among the countries concerned? Or, indeed, does “might make right” in international relations?
Thucydides Trap
The question of Chinese behavior is, however, not the sole determinant of peace in the South China Sea. As China is expanding economically, it is also getting stronger militarily. Hence, the inescapable questions, which, recently, have also been a controversial subject of debate: will China rise peacefully? and further, will it rise in a manner where the only existing regional hegemon—the US—should be without cause for concern? These questions are as polarizing as any other issue involving China and the US. Kishore Mahbubani (Mahubani et al, 2020) discoursed that China can rise peacefully, based on the premise that when China previously held dominance, it did not conquer the world and did not set out to expand its dominance to other regions, unlike France, Spain, Britain, and the Netherlands, who have a shared history of occupying and colonizing foreign territories and subjugating native peoples.
On the other hand, John Mearsheimer (2014:410) takes a more measured view of China’s rise. According to Mearsheimer, China will seek to maximize the power gap with its neighbors and will ensure that it achieves a level of dominance such that no State in Asia has the wherewithal to threaten it (Mearsheimer, 2014:370). He theorizes that China will attempt to establish dominance over Asia in line with the US dominance of the Western Hemisphere. Although, the US will not sit idly by and allow this to pass unchallenged. Being the sole regional hegemon, the US will ensure that no rival Great Power dominates another area (Mearsheimer, 2014:363). Mearsheimer is advancing the idea that war between the US and China is not far-fetched as the two rival powers will eventually fall into the Thucydides Trap.
If war should take place between the US and China, the most likely theater would be the South China Sea. Emulating the US who dominated the Greater Caribbean Basin, China will attempt to dominate the South China Sea in order to gain effective control over Asia, and as pointed out above, the US, who has treaty and defense allies in the South China Sea, will inevitably pose a challenge to this attempt of domination as being in conflict with its hegemonic interest.
Underpinning Mearsheimer’s theory is survival. He argues that States in the international system aim to guarantee their own survival, and since other States constitute potential threats, and because there is no higher authority to come to their rescue when they call for help, States cannot depend on others for their own security (Mearsheimer, 2014:32). In this sense, it can be said that one of the primary drivers of conflict between China and the US and between China and its neighbors, including the Philippines, is the need for survival and security. Unfulfilled needs, after all, are a major source of conflict (Abdalla and Sender, 2019).
Peace in the Seas and Oceans: Peaceful Purpose Principle
Peace is not exclusive to the terrestrial domains of a State. Peace should reign not only on lands but also on the seas, as the latter are as important as the former considering the ever-increasing traffic of trade along sea-routes and the enormity of vital sea-based natural resources that support global and national economies. Inasmuch as seas are a theater for increasing individual and State interaction, they are as well a potential theater for individual and State conflict, being that all subjects of international law are susceptible to having diverging or opposing interests in utilizing the seas and the natural resources beneath them. Thus, Article 301 of UNCLOS on “Peaceful uses of the seas” demands that,
In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.
The use of oceans and seas for “peaceful purposes” had been interpreted in a variety of ways. However, a 1985 report by the UN Secretary-General maintains the position that the UN Charter and other obligations of international law determine whether a particular maritime operation is considered peaceful. The report concludes that “military activities” consistent with the principles of international law entrenched in the UN Charter, specifically Article 2(4) and Article 51, are not prohibited by UNCLOS (Kraska, 2015). However, although UNCLOS does not completely prohibit military use of seas and oceans, military activities in seas and oceans, such as military exercises in the EEZ of another State, raise particular sensitivities associated with the security of coastal States (Tanaka, 2019).
Brief Analysis of Peace in the SCS Using Johan Galtung’s Philosophy of Peace
The Peaceful Purposes Principle connotes not only the absence of threat or use of force (violence) but also adherence to the principles of international law, in particular UNCLOS (Kraska, 2015). In this sense, Johan Galtung’s concept of Negative and Positive peace also applies to conditions or relations of States and other subjects of international law in the seas and oceans.
Galtung defined peace as the cessation of direct violence (“negative peace”) and the overcoming of structural and cultural violence (“positive peace”). This extended definition was borne out of the extended definition of “violence,” which Galtung defined as “present when human beings are being influenced so that their actual somatic and mental realizations are below their potential realization.” Deriving from these definitions of both peace and violence, negative peace is said to possess the following characteristics: absence of violence, pessimistic, curative, peace not always by peaceful means. On the other hand, positive peace possesses the following: structural integration, optimistic, preventive, peace by peaceful means. In positive peace, there is the presence of harmonious social relations and the “integration of human society” (Galtung, 1964).
Within the context of the South China Sea issue, concerned parties (Philippines, Vietnam, Malaysia, Singapore, Indonesia, Brunei, China, ASEAN) have engaged in achieving both negative and positive peace. Among concerned states that are members of ASEAN, attaining and maintaining negative peace has been pursued through mitigation of interstate conflict by treaty, declaration, and concord. Among these instruments are the ASEAN Declaration, Treaty of Amity and Cooperation, Declaration on the Conduct (DOC) of Parties in the South China Sea, ASEAN Concord II, and the ASEAN and China Guidelines on the Implementation of the DOC. On the other hand, attaining and maintaining positive peace has been carried out through economic integration, socialization, political cooperation, diplomacy, multilateralism, etc. In addition, concerned ASEAN countries and China have been parties to multilateral conventions like UNCLOS. Efforts have also been exerted by specific countries, like the Philippines and Indonesia, who have just recently ratified a treaty settling their maritime boundaries and delimitations.
Through these various means of achieving peace, it can be said that there have been robust efforts on the part of the concerned parties to provide frameworks and platforms to comply with the Peaceful Purposes Principle embodied in Article 301 of UNCLOS. However, as already discussed, the full realization of the objectives of these means to attain and maintain peace are continuously being challenged.
Challenges to Peace in the South China Sea
As initially discussed above, the geopolitical dynamics between the US and China remain as one of the major concerns regarding peace in the South China Sea. This concern has intensified in recent years, as both the US – under the Trump administration – (Yan, 2019) and China (Romaniuk and Burgers, 2019) have increased their military activities in the disputed sea. On the part of the US, the recent visits of its warships and other military vessels under what it calls an exercise of its Freedom of Navigation and Overflight Operations (FONOP) under customary international law have alarmed China (Romaniuk and Burgers, 2019). In response, China has expanded the militarization of its artificial islands by installing and placing weapons and weapon systems, including sophisticated combat aircraft, surface-to-air missiles (SAMs), anti-ship (ballistic) missiles, and jamming technology, despite President Xi Jinping’s guarantee that China’s territorial assets would not be militarized (Romaniuk and Burgers, 2019).
Another major challenge to achieving peace in the South China Sea is the inability of ASEAN and China to establish a legally binding agreement that will set regional norms and rules to avoid conflict in the disputed waters. The concerned parties have been negotiating a legally binding agreement for more than two decades already, but they have only managed to agree upon a non-binding declaration of conduct (AMTI, 2018). The South China Sea tensions lingered throughout the mid-1990s and have escalated steadily since 2009, thus stressing the need for a more robust agreement to manage the disputes (AMTI, 2018).
Another challenge is the fact that, except for the World Trade Organization dispute settlement mechanisms and investment arbitration, China has not accepted the compulsory jurisdiction of international forums, including the International Court of Justice, or the compulsory jurisdiction of UNCLOS concerning maritime boundary delimitation, historic bays or titles, or military activities (Zou, 2015:641). This makes it impossible for other parties to settle disputes with China within legally recognized international judicial tribunals.
In addition, the absence of a binding mechanism specifically dedicated to the contested areas of the South China Sea for cooperation between and among parties regarding conservation and preservation, or exploration, development, and utilization of natural resources also poses a challenge. The South China Sea has rich reserves of marine living and non-living resources and biodiversity, as well as huge mineral reserves, including oil and gas (Zou, 2015:627-628), but considering that most of these resources are limited and transcend territorial boundaries, conflict relative to their exploration and utilization is highly probable. Thus, there is a need for a mechanism to bind and guide the actions of concerned parties towards conflict avoidance. It is not amiss to point out, however, that the Philippines and China have signed in 2018 a Memorandum of Understanding for gas and oil exploration in the South China Sea.
Pathways to Peace and Some Final Thoughts
The tension in the South China Sea will remain high in the years to come, but this does not mean that concerned parties should be discouraged from changing the course of the tension in a more positive direction. The mechanisms to achieve positive peace enumerated above have all been regarded as vital steps to establish peace and security in the South China Sea. Yet, more is required to be done to achieve greater success, not only for one or two parties but also for all those who have a stake in maintaining peace in the contested sea. Regional cooperation and promotion of regional peace and security between ASEAN and China through feasible means such as joint development, joint management of fishery resources, common responsibilities for the protection of the marine environment, and cooperation in non-traditional security issues (Zou, 2015:639) are among the probable options for achieving a more durable peace.
As to the increasing US-China rivalry, heeding the suggestions of Robert Kaplan may prove vital for ASEAN. Kaplan suggested,
It would be healthier for the American-Chinese relationship – the most important bilateral relationship in the world – if Asian states themselves helped balance against rising Chinese military power, rather than relying overwhelmingly on the United States. The most obvious mechanism for that is a strengthened Association of Southeast Asian Nations. ASEAN is ascending. To be sure, ASEAN is not at the level of integration of the European Union (EU), which is united by a common form of government – democracy – giving it philosophical, and hence political, raison d'être. Moreover, China maintains the ability to exploit divisions within ASEAN. Nevertheless, ASEAN – its democracies and quasi-democracies both – has been over the course of the decades gradually pulling together because of the challenge of a rising China, and also because the individual member states themselves have been evolving into more capable bureaucratic instruments in their own right, able to project power for the first time in their histories (Kaplan, 2014:174).
On the matter of preserving the gains from the decision of the Arbitral Tribunal in the Philippines vs. China case, the Philippines should continue to assert said judgment in international forums such as the United Nations. The Philippines should also push ASEAN to move toward the adoption of a legally binding Code of Conduct in the South China Sea, anchored on the premise that a regional order based on international law is still the more logical option to attain and maintain long-lasting peace and cooperation in the South China Sea.
Additionally, since the Philippine-China relationship is not defined solely by the South China Sea dispute, the Philippines must continue its engagement with China through bilateral consultation mechanisms, as well as soft, cultural, and economic diplomacy to fuel confidence-building between the two nations.
*** The views expressed herein belong solely to the author and do not necessarily represent the opinions of his employer, the University of Peace, JTMS or the Yonsei Institute for North Korean Studies. Mark Anthony Articulo is a Foreign Service Officer from the Philippines. He is presently pursuing a Master of Arts in International Law and the Settlement of Disputes at the University for Peace, Costa Rica and Master in Transdisciplinary Social Development at the Ateneo de Manila University, Manila, Philippines, as an Asian Peacebuilders (APS) scholar. He is the Founder and Chairman of the Cagayan Legal Assistance on Wheels (CLAWs), Inc., which is a non-stock and non-profit corporation that aims to provide free legal assistance and promote legal literacy among the impoverished and marginalized communities in his home province.
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