How China’s actions in the South China Sea undermine the rule of law

An aerial view of uninhabited island of Spratlys in the disputed South China Sea, April 21, 2017.   REUTERS/Erik De Castro - RC13A2A96A00

Executive Summary

Learn more about Global ChinaThis paper argues that China’s actions in the South China Sea have contributed to a weakening of the international law of the sea. This hurts all countries, including China, which have an interest in ensuring that competition stays within the parameters of international law, which helps promote stability and minimizes the risk of conflict. It provides an overview of the South China Sea dispute and the 2016 arbitral tribunal ruling in a case the Philippines brought against China under the United Nations Convention on the Law of the Sea. The paper identifies actions China has taken to pursue its territorial and maritime claims and control around features, including encroaching on coastal states’ exclusive economic zones, increasing its military presence around features, seeking to deny the United States and other countries navigational and other freedoms of the seas, and escalating its militarization of features it occupies. These actions have allowed China to gain military advantages in the event of conflict and, significantly, non-military advantages in situations short of outright conflict, by deterring other claimants from putting up a strong resistance to Chinese incursions and undermining U.S. credibility in the region. The paper examines the responses of Vietnam, the Philippines, and Malaysia.

The paper concludes with recommendations for the United States, positing that China has not yet won in the South China Sea. Recommendations include regularly asserting maritime rights and freedoms and encouraging others to do so; continuing to hold bilateral and multilateral drills in the region with allies and partners; strengthening ties with its regional allies and partners, the Philippines in particular; communicating to China that building on Scarborough Shoal would have serious repercussions; supporting coastal states’ efforts to stand up to incursions into their exclusive economic zones; and cooperating with its allies and partners to promote development in the region — the South China Sea cannot be viewed in isolation and how Southeast Asian countries position themselves there will depend on the broader strategic and economic landscape. These measures are imperative to giving the countries of Southeast Asia greater agency, not least in supporting the rule of law.