South China Sea: Calls to honor Hague ruling 5 years on, but Beijing digs in

Sarah Zheng and Rachel Zhang, South China Morning Post

Posted at Jul 26 2021 02:41 PM

Five years ago, Beijing blithely dismissed an international tribunal’s landmark ruling that found its sweeping claims in the South China Sea had no legal basis.

Liu Zhenmin, China’s then foreign vice-minister, said the decision handed down at The Hague in July 2016 was “just a piece of waste paper” that China would not recognise or enforce. “You may chuck it in the bin, leave it on the shelf or put it in the archives,” he said. “It is null and void, and has no binding force.”

Although the United States said at the time the decision was “very decisive”, US security assurances to the Philippines did not explicitly state that their mutual defence treaty would cover disputed territories in the South China Sea.

With little recourse to enforce the ruling in his country’s favour, Philippine President Rodrigo Duterte – who had taken office after a landslide victory that May – flew to Beijing in October 2016 and declared that the tribunal decision would “take the back seat”. It was on that trip that Duterte, angered also by US criticism of his bloody war on drugs, declared that “America has lost now”, and moved to warmly embrace Chinese investment and trade.

But now, after years of tension building up in the South China Sea – also one of the world’s busiest shipping routes – the ruling has taken on new significance.

On the July 12 anniversary of the tribunal’s decision, countries including the US, Canada, Australia and Japan called on China to abide by the judgment. US Secretary of State Antony Blinken also said that the US’ mutual defence treaty with the Philippines would cover an attack in the South China Sea, to which Beijing responded by again describing the arbitration verdict as a “piece of waste paper” and a “political farce which is initiated and manipulated by the US to smear and suppress China”.

Beijing is expected to only harden its position on the issue, including by dominating talks with the Association of Southeast Asian Nations (Asean) for a long-delayed code of conduct in the waters.

Asean and China committed in talks last month to restarting negotiations on the code of conduct, but little progress is expected this year.

Collin Koh, a research fellow at the S. Rajaratnam School of International Studies in Singapore, said invoking the 2016 award would come across to Beijing as “particularly annoying” but would “do nothing to threaten China’s position in the South China Sea”.

“Over the years, especially with the creation of its artificial island outposts and a steady improvement in its military and coastguard capabilities in the South China Sea and its surrounding environment, the Chinese appear to be more comfortable and confident of their position in the area,” he said.

“I tend to see Beijing sticking to its long-standing position on the 2016 award, with no prospect of backing down in the face of pressure from the US or in a bid to strengthen ties with Asean.”

There have been growing fears that the South China Sea could become a flashpoint between Beijing and Washington, with both conducting regular military exercises there as Beijing asserts its maritime claims more aggressively and Washington focuses its defence strategy on countering China in the region.

Both sailed aircraft carriers in the East China and South China seas in April, and China recently warned off US warship the USS Benfold about “trespassing” near the disputed Paracel Islands. Although the US is not a claimant in the waters, it has been keen to challenge Beijing’s vast claims there and resist a growing implementation of China’s naval strategy.

Le Hong Hiep, a senior fellow at ISEAS-Yusof Ishak Institute, said China was unlikely to make significant concessions in a code of conduct, and US pressure would only make China “more cautious and reluctant to do so”.

“[The US and China] are likely to harden their stances on the issue,” he said. “Blinken’s statement is just one of the recent examples of this trend. This will put more pressure on China, and China is likely to respond in kind.”

Philippine Foreign Secretary Teodoro Locsin said in a video before The Hague ruling’s anniversary that the award had “conclusively settled the status of historic rights and maritime entitlements in the South China Sea”, and that Manila welcomed the “increasing number of states that have come in support of the award and what it stands for”.

But observers said Duterte’s administration, which has continued to be sceptical of the US while cultivating closer ties with Beijing, is not expected to change course.

Chester Cabalza, president and founder of the International Development and Security Cooperation, said that despite Blinken’s statement, there was still suspicion over the US’ sincerity in helping the Philippines. A sign of this was Duterte’s ongoing review of the 1999 Philippines-United States Visiting Forces Agreement (which followed on from the 1951 Mutual Defence Treaty) allowing US soldiers to train in the Philippines.

“This is a wake-up call for the Joe Biden administration,” Cabalza said. “Whatever Washington does at the moment for Manila, it lacks merit, and [Duterte] finds some answers to his scepticism [from] Beijing. China is one step ahead of the US in courting the Philippines, despite Manila’s flip-flopping foreign policy and meek policy on the South China Sea.”

In the Philippines, the South China Sea is also set to be a major issue in next year’s presidential election, following a dispute at Whitsun Reef this year over the presence of Chinese vessels that Manila said were part of a maritime militia but Beijing claimed were fishing boats.

There is growing discontent on the issue from Manila’s defence establishment – which is more inclined towards the US – over Duterte’s perceived concessions in the South China Sea through him not fully capitalising on the tribunal ruling.

In response to domestic pressure, the country’s military has strengthened its presence in the waters it claims, and Duterte has vowed that Philippine ships near the Spratly Islands would “not move an inch backwards”.

Regardless, voter enthusiasm has not slowed for Duterte, who cannot stand again for the presidency but has floated his candidacy to be vice-president, with his daughter leading polls as a potential presidential contender.

Yu Zhirong, deputy secretary general of Chinese think tank Pacific Society of China, said Duterte had little reason to change his stance on China now, given Beijing had never recognised the arbitration ruling.

“The US is unhappy to see this, so Blinken’s statement was intended to use the Philippines to put pressure on China,” he said. “Washington has been dissatisfied with Duterte, because he has developed rather close relations with China instead of taking a tough stance against it using the arbitral ruling.

“However, it is difficult for the US to provoke Duterte to be tough on China, because he thinks the Philippines can benefit more from friendly ties with China than from confrontation.”

Jeffrey Ordaniel, director of maritime programmes at the Pacific Forum, said that if Duterte changed his position on the South China Sea now, it would be an acknowledgement of a “failed appeasement policy”.

He said that the US’ statement on the 2016 award and defence treaty would put “more pressure on China, not necessarily to reverse course, but to think twice before escalating tension with Manila”. However, China’s position on the issue would only grow stronger, even were a new Philippine president to be more antagonistic towards Beijing, he said.

The South China Sea has increasingly been a site of regional tensions, with other claimants of the waters, including Vietnam and Malaysia, also becoming more vocal in criticising Beijing’s more aggressive moves there.

In January, China passed a law that explicitly allows its coastguard to fire on foreign vessels and demolish structures in disputed waters to assert Chinese sovereignty, raising concerns for other countries of the coastguard being empowered to act as a maritime militia.

The US, which is undergoing a review of its China policy under Biden, has made clear that it will continue to challenge Beijing’s “excessive maritime claims”, including in Blinken’s latest statement.

“Blinken’s remarks reaffirming the US commitment to defend the Philippines are part of an overall effort to assure the Philippines and other allies that the US is a reliable security partner and will honour its treaty commitments,” said David Denoon, a professor of policies at New York University and former US deputy assistant secretary of defence.

“President Duterte’s term will soon be coming to an end, so comments by the US secretary of state are presumably meant to signal long-term US support as candidates emerge to succeed Duterte.”

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