China's Reckless South China Sea Strategy Won't Work
The Arbitral Tribunal in the Philippines-China case will likely release its much-awaited judgment in the next few weeks. For the Philippines—a veritable David to China’s Goliath in terms of economic, political and military might—a favorable decision serves as the best form of “lawfare” and will be an international legal validation of its main submissions, which are solidly anchored in United Nations Convention on the Law of the Sea (UNCLOS) provisions and general principles of international law. Unfortunately, victory in this case will likely not lead to closure for a country that has pinned so much hope on its outcome. The obvious problem is that China has refused to participate in the arbitral process, and has even gone so far as to denounce the whole thing as “illegal.” Even though the tribunal has neatly disposed of China’s arguments pertaining to jurisdiction, it continues to insist that the dispute must be exclusively settled via bilateral negotiations. Perhaps to prove its point, China has in the meantime been doing its absolute best to reshape the status quo in a way that makes its possible loss in the arbitration virtually irrelevant and beside the point.
China has been rapidly and unabashedly changing the physical characteristics of the South China Sea (SCS) via its massive island-building program in the Spratlys, which began in early 2014. In just under two years, China was able to transform the uninhabitable to the habitable: Mischief Reef, Cuarteron Reef, Hughes Reef, Johnson South Reef, Fiery Cross Reef, the Gaven Reefs and Subi Reef are now unrecognizable as the reefs and rocks that they once were. China’s Foreign Ministry has sought to frame the island building as a force for regional good—that it would help China fulfill its international legal obligations in maritime search and rescue, disaster prevention and mitigation, marine scientific research, meteorological observation, environmental protection, navigation safety, fisheries production and other endeavors. However, this is a situation where motive clearly takes a backseat to audience impact. Chinese force projection is on everyone’s mind as China continues to convert SCS features into mid-ocean outposts for its military and nonmilitary assets. One cannot help but be skeptical of China’s rhetoric when, so far, the newly built “islands” have only resulted in generating widespread concerns about their marine environmental impact, their effect on fisheries access and their ramifications on freedom of navigation in the disputed area.
The question to be asked, then, is this: Does China’s “island-building” program indicate a lack of self-restraint in view of the ongoing maritime dispute?
The phrase “self-restraint” appears in Paragraph 5 of the 2002 Declaration on the Conduct of the Parties, which provides that “the Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.” Apart from a cursory (yet enlightening) mention of the duty to refrain from inhabiting uninhabited features in the SCS, the declaration unfortunately fails to define specific activities that would “complicate or escalate disputes” or “affect peace and stability.”