This article first appeared on Pacific Forum and is republished with permission. Read the original here.
July 12 marked the 10th anniversary of the arbitral tribunal ruling in favor of the Philippines on its South China Sea submission — a ruling China ignored, and one that has become a footnote in the gradual degradation of the rules-based order.
Ten years on, we live in a very different world: one in which Russia has invaded and occupied parts of a major European nation, and one in which China has built a string of heavily militarized islets, bristling with weapons, across one of the world’s most consequential maritime corridors — a corridor that carries roughly one-third of all global shipping.
The rules-based order is increasingly fractured, and as the July 12 joint statement from 14 nations showed, its defense is piecemeal by “coalitions of the willing.” But the statement’s signatory list is the more telling story here: of the 14 governments that commemorated the ruling, only one—the Philippines—is actually an ASEAN member state—something that Chinese trolls trumpeted on social media.
In 2013, when the Philippines asked the Permanent Court of Arbitration (PCA) to rule on the historic rights and source of maritime entitlements in the South China Sea, and on the lawfulness of China’s conduct, the international courts still looked robust—capable of working through China’s sullen non-engagement with the process.
Beijing refused to send representatives to the arbitration or even accept correspondence from the tribunal’s judges, but that refusal was never a bar to proceedings. Article 9 of Annex VII to UNCLOS is unambiguous: “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”
On July 12, 2016, the PCA duly ruled that China’s non-participation could not be used to infringe the Philippines’ right to arbitration, and the tribunal delivered its verdict on the broader questions Manila had raised.
That judgment did not award “sovereignty” over any Philippine-claimed islets or features — but it did unambiguously dismantle China’s gibberish legal arguments that are foundational to its claims to the South China Sea, claims that overlap with the exclusive economic zones of Vietnam, Malaysia, Brunei, and Indonesia as much as the Philippines.
This was never a bilateral dispute. It was, in effect, a case that the Philippines took on board for all of the ASEAN claimant states.
For those familiar with China’s claims, Beijing has long argued — and continues to argue — that it holds “historic rights” over the South China Sea, promoted through the “nine-dash line” as the boundary of its “jurisdiction.” In 2009, China sent two Notes Verbales to the UN Secretary-General asserting “indisputable sovereignty over the islands in the South China Sea,” attaching a copy of the nine-dash line map.
Any competent maritime legal adviser would have counseled against such a submission: “historic rights” claims are notoriously weak in international law, and a set of dashes on a map does not constitute a legal argument. In committing these claims to writing and submitting them to the UN, China revealed two things that should have mattered to every ASEAN capital, not just Manila.
First, by refusing to clarify what exactly the nine-dash line was meant to denote, Beijing showed itself an expansionist power, intent on controlling a geostrategically important sea lane that skirts its territory. Second, it showed itself willing to join international “all in” legal regimes, like UNCLOS, and then break their terms at will.
The United States, by contrast, has never ratified UNCLOS, wary of the obligations that ratification would impose; China signed readily, then reneged on the parts it disliked. For ASEAN specifically, that second point should have been the more alarming one: it means no code of conduct, no framework, no bilateral memorandum that Beijing eventually signs with the bloc will bind it further than its preferences allow.
Any agreement is, to Beijing, little more than “a piece of waste paper.” This is less a sign that an alternative rules-based order is emerging than that the age of naked power is reasserting itself through the cracks of the old one and ASEAN, as a bloc built on consensus and non-interference, remains its softest target.
In 2016, the Permanent Court of Arbitration took China’s two Notes Verbales apart, piece by piece, finding them “contrary to” the scope of UNCLOS, a convention China had itself signed and therefore, “without lawful effect.” In short: the world’s foremost maritime legal body had ruled that China’s claims were dead on arrival.
Beijing’s response was to carry out a media campaign of intimidation against Manila and begin building four large outposts, each fitted with a runway of roughly 10,000 feet, on Woody Island, Fiery Cross Reef, Mischief Reef and Subi Reef. The work continues today, increasingly at the expense of ASEAN member Vietnam. According to CSIS’s Asia Maritime Transparency Initiative, China is currently dredging a new outpost at Antelope Reef in the Paracel Islands, roughly 216 nautical miles from Da Nang.
At an estimated 1,490 acres, the new outpost is set to become China’s largest in the South China Sea, with space for power plants, underground storage, coastal-defense and anti-ship missile emplacements, and extensive surveillance and electronic-warfare facilities. It is a continuation of China’s broader strategy of territorial consolidation, pursued, deliberately, one claimant state at a time.
That, in miniature, is the root of the ASEAN problem: Vietnam is the state with the most immediate stake in Antelope Reef, and Vietnam was not among yesterday’s 14 signatories either. ASEAN centrality is meaningless in the face of this piecemeal approach.
That is not an accident. It is the pattern. ASEAN operates by consensus, and a bloc that includes members economically dependent on Beijing — Cambodia and Laos foremost among them — has repeatedly been unable to issue a unified position on the South China Sea, dating back to the 2012 breakdown at the ASEAN Foreign Ministers’ Meeting in Phnom Penh, the first time in the organization’s history it failed to produce a joint communiqué.
China understands this mechanism better than ASEAN’s own members sometimes seem to: a bloc that must agree unanimously can be neutralized by capturing or pressuring a single member. The result is that even a claimant state as exposed as Vietnam finds it easier to stay silent than to force the issue inside ASEAN, leaving the defense of a judgment that vindicated the whole region to outside powers instead.
Yesterday, the United States joined 13 other nations in commemorating the 10th anniversary of the award. Only one of those 14 signatories was an ASEAN member state: the Philippines.
Next year, in August 2027, ASEAN will mark its 60th anniversary since the signing of its founding document: a moment to celebrate six decades of economic, cultural and diplomatic progress, but also one to reckon with the organisation’s failure to live up to its founding promise of “promoting peace and stability, through respect for justice, the rule of law, and adherence to the principles of the United Nations Charter.”
China’s response to both the original award and to yesterday’s joint statement are each a strong indicator of where Beijing is headed. Long cloaked in the “hide and bide” posture of a responsible global citizen, China is now attacking the norms and conventions of the post-war order—dismissing them as relics, reshaping them, or hollowing them out from within.
Whatever its rhetoric, Beijing is not building an alternative rules-based system; its parallel institutions have a decidedly mixed record. What is clear is its preference for a hierarchy running from Beijing outward to its neighbors, negotiated one capital at a time rather than with a bloc that might act together. And that is at the crux of ASEAN’s problem.
John Hemmings (john@pacforum.org) is director for the National Security Center at the Henry Jackson Society and senior advisor at Pacific Forum.
