‘Rules-based order’ a theme at 9th South China Sea Conference

Unease about China’s seeming willingness to ignore international law meant panellists at the 9th South China Sea Conference often struggled to find positive suggestions, writes Joanna Mossop.

OPINION: The 9th South China Sea Conference in Vietnam on 27-28 November was held 18 months following the release of the decision of the arbitral tribunal in the South China Sea arbitration between the Philippines and China. It is well known that China has rejected the legitimacy of the Tribunal and the content of the decision. As an international lawyer, I was curious to see how the conference participants from the region were discussing the case. Would it be central to the discussions, or on the periphery? The conference organisers did include a session on legal dimensions in the South China Sea, but only one paper was asked to directly address the decision.

As it turned out, the arbitral decision formed an important part of the backdrop to the discussions, but was often referred to either obliquely or in passing. The very first panellist made very strong statements about the importance of the states in the region complying with international law. The concept of a “rules-based order” was a theme that recurred in many of the presentations. It seems many commentators considered the fact that China was ignoring the South China Sea Arbitration Award was part of a bigger picture of a disregard for international law in its dealings in the South China Sea. Most participants proceeded on the basis that China would not comply with the ruling. This is due in part to China’s opposition to the award, and also to the fact that currently the Philippines is not making the award a key message in its foreign policy towards China. The result of this is there is uncertainty about how to view the case and its ruling, which is a problem for small states seeking a sound legal basis for dealing with the dispute.

“Unease about China’s seeming willingness to ignore international law meant panellists often struggled to find positive suggestions for progress.”

A variety of panellists noted the apparent stability in the South China Sea that exists at present. They did not always agree this was a good thing. Some believed the relative calm in the region probably resulted from the narrower engagement of the United States in the region, as well as the fact that China has achieved de facto control of the South China Sea. There is concern that China may see a strategy of side-lining international law in its relations with its neighbours as a model that could be followed in other circumstances. An interesting presentation outlined the way in which the Chinese tactics in the South China Sea in the last few years were unprecedented. It is clear that the smaller states in the region are still grappling with how to respond to China’s approach.

Another noteworthy point of discussion was the possible content and form of the Code of Conduct involving China and ASEAN. This development has been promoted by smaller states in the region with the hope that it will have more impact than the 2002 Declaration of Conduct, which was ignored by some claimant states. However, there was considerable disagreement among the experts at the conference, with the majority being sceptical that the states, especially China, would agree to a truly effective legally binding agreement.

Overall, uncertainty about the future of US engagement with South China Sea issues, and an unease about China’s seeming willingness to ignore international law meant panellists often struggled to find positive suggestions for progress. In most cases, the proposals were focused on finding common ground and building trust, particularly between the claimant states. The negotiations for a Code of Conduct may offer some opportunities to progress matters, but clearly there are considerable hurdles to overcome.

The programme, some of the Powerpoint presentations, and recordings of the sessions, are available here.

Views expressed are personal to the author.

– Asia Media Centre