At Manila Dialogue, Contemplating UNCLOS Rights and China's Might

 

[By Euan Graham]

Last week’s Manila Dialogue demonstrated that the Philippines is far from cowed or isolated in the face of China’s continued bullying in the South China Sea. But it also highlighted the limitations of transparency as a stand-alone strategy against Beijing’s maritime encroachment. The dialogue’s focus on international law has broader relevance for Australia.

This annual meeting about the South China Sea is a fairly new addition to the regional conference scene. Last week’s iteration, which I attended, was only the second.

It serves, in part, to promote the transparency campaign led by the Philippine Coast Guard, which for more than two years has systematically publicized China’s sustained harassment of Philippine vessels and aircraft within Manila’s exclusive economic zone. Dialogue participants included practitioners and experts from around the region, including several non-government representatives from China.

The transparency campaign has been highly effective at generating international sympathy and support for the Philippines as it grapples with encroachment and harassment by Chinese paramilitary and military forces on a daily basis. In the court of global public opinion, the campaign has provided an effective informational counter to Beijing’s bullying tactics, which are designed to subdue the Philippines and other Southeast Asian states into a state of strategic quiescence.

Australia, Canada, Japan, New Zealand and several European countries have stepped up security cooperation with Manila under the administration of President Ferdinand Marcos. In parallel, Manila seeks to build up the Philippines’ conventional defenses while deepening military cooperation with like-minded partners. On 2 November, Canada became the latest country to sign a visiting forces agreement with the Philippines. By providing for the presence of signatories’ forces on each other’s territory, such agreements strengthen military cooperation and deterrence.

Sympathy and support for Manila’s plight have been in conspicuously shorter supply in Southeast Asia. Next year, however, the Philippines will host the Association of Southeast Asian Nations summit and other meetings as the grouping’s rotating chair. This gifts Manila a decadal, diplomatic opportunity to channel intra-mural support for its frontline stand in the South China Sea. ASEAN’s external credibility will ride on the grouping’s ability to maintain unity on this internally divisive issue.

At the same time, the Philippines can be under no illusions that transparency has dented China’s determination to continue pressing its claims. In early August, the fratricidal collision of a Chinese destroyer and coast guard vessel in close proximity to a Philippine patrol ship off Scarborough Shoal confirmed Beijing’s willingness to pressure Manila to a reckless degree. Even in the face of clear video evidence to the contrary, poker-faced Chinese participants at the Manila Dialogue maintained that China was exercising restraint, merely reacting to the provocations of others. China is unswayed by reputational damage, relying instead on demonstrations of power and dominance.

A related conference theme was the tension between the United Nations Convention on the Law of the Sea (UNCLOS), as a legal and normative framework that supports the Philippines’ sovereign equities in the South China Sea, and China’s might-over-right approach despite the illegitimacy of its dashed-line claims. One of UNCLOS’s guiding principles, that land dominates the sea, naturally favors Southeast Asia’s maritime geography over China’s as a basis for jurisdiction in the South China Sea. International law gives maritime Southeast Asia its best shot at inoculation from the alternative of an expansionist China dominating its strategic future.

The key shortcoming of international law is weak enforcement. Even without a law-of-the-sea police force to patrol the South China Sea, littoral states in Southeast Asia can still improve their position by bringing national laws into conformity with UNCLOS. Vietnam has already made progress here. So too has the Philippines, last year enacting two new laws delineating its maritime zones and designating sea lanes for international passage through its archipelago. These laws involved compromises on the part of Vietnam and the Philippines, as coastal states. But conformity with international law enhances their collective stake in the rules-based order and simplifies the problem of enforcement for national agencies, and potentially for international partners.

The defense of international law and UNCLOS have become key points in Australia’s strategic policy and regional narrative—something that resonates with Minister for Defence Richard Marles. Close partners such as the Philippines, Indonesia, Fiji and Papua New Guinea, as archipelagic states, owe not only their exclusive marine resource rights, but their basic territorial integrity and sovereignty over water, to UNCLOS’s existence. UNCLOS is a key pillar of the regional rules-based order, not only for Western countries interested in freedom of navigation, but also for developing, formerly colonized states for which maritime porosity was historically their main strategic weakness.

This helps to explain why Australia emphases UNCLOS to the extent that it does in its definition of the regional order. As a signatory to UNCLOS, China doesn’t ignore it. Rather, Beijing picks the principles that suit its national interests and ignores the parts that don’t. If China tramples on the sovereignty of large, archipelagic states, such as Indonesia and the Philippines, it could face a more concerted response than it has bargained for.

However, just as the Philippines needs to think beyond its transparency campaign, Australia should be careful not to wrap its strategic narrative too tightly around international law. Coercive and destabilizing behavior can still be consistent with international law. China’s military air and sea patrols around Taiwan have demonstrated this, along with its near-encirclement of Australia earlier this year. Applying a law-enforcement or excessively legalistic mindset to a strategic problem such as China may be a losing game from a deterrence perspective.

Euan Graham is a senior analyst with ASPI’s Defence Strategy program. This article appears courtesy of ASPI and may be found in its original form here.