Indo-Pacific Perspective │ 16
Do Regimes
Matter?
Implications of the
2016 UNCLOS South
China Sea Ruling for
a Rules-based order
in the Indo-Pacific
Dr. Laura Southgate
he Philippines’ 2013 decision
to initiate proceedings against
China at the Permanent Court
of Arbitration (PCA) under Article 287
and Annex VII of the 1982 United Na-
tions Convention on the Law of the
Sea (UNCLOS) was a result of the on-
going, heated sovereignty dispute
between the two countries over mari-
time territory in the South China Sea.
China claims historical rights to all
territory within the ‘nine-dash line’,
an undefined demarcation that encom-
passes the majority of the South
China Sea. This has created conflict
with a number of small claimant
states in Southeast Asia and other re-
gional powers such as the United
States, Japan, India and Australia.
China’s militarization of islands in the
disputed waters and the assertive tac-
tics it has used to defend its sover-
eignty claims are symptomatic of its
growing status as Great Power in the
international system. These actions
have also increasingly challenged the
existing rules-based order in the Indo-
Pacific. As stated by President Obama
in April 2015, “where we get con-
cerned with China is where it is not
necessarily abiding by international
norms and rules and is using its sheer
size and muscle to force countries into
subordinate positions.”
1
The Philip-
pines’ attempt to have its sovereign
rights in the South China Sea
acknowledged under international law
represents a direct challenge to
China’s regional claims. China’s re-
sponse to the PCA ruling provides a
window through which to examine
both the existence of a rules-based or-
der in the Indo-Pacific and its future
prospects as China increasingly seeks
to exert its influence in the interna-
tional system.
T
4
Do Regimes Matter?
Indo-Pacific Perspective │17
UNCLOS Ruling and Its
Aftermath
China responded dismissively to
the Philippines’ arbitration case by
refusing to participate in proceed-
ings. China’s Ministry of Foreign
Affairs released a ‘position paper’
in December 2014 claiming that
territorial sovereignty over mari-
time features was beyond the scope
of the Convention.
2
This did not de-
ter the PCA, which ruled in July
2016 that China’s claim to historic
rights to resources in the South
China Sea were “incompatible with
the exclusive economic zones pro-
vided for in the convention” and
that “there was no legal basis” for
China to claim historic rights
within the nine-dash line.
3
The
groundbreaking ruling had little
immediate impact on the dispute,
however. China dismissed the rul-
ing as a “null and void decision”
and “nothing more than a piece of
paper.”
4
The Philippines’ new Pres-
ident Rodrigo Duterte stated that
he would “set aside the arbitral
ruling” in favor of economic incen-
tives from China.
5
This was con-
firmed by the Philippines’ Foreign
Secretary Perfecto Yasay Jr., who
stated that the Philippines “won’t
take any steps against China” and
that he wanted “to make sure that
there will be no further actions
that will heighten the tensions be-
tween the two countries,
particularly in the Scarborough
Shoal.”
6
Yasay concluded: “we can-
not stop China at this point in
time…we will continue to pursue
peaceful means” to the dispute.
7
Despite the brokering of a ‘status-
quo’ between the Philippines and
China, whereby the latter purport-
edly agreed to halt further expan-
sion in the South China Sea,
8
re-
ports from as early as November
2017 suggested that China had
continued to develop facilities in
the Paracel Islands, in addition to
a military buildup in the Spratly
Islands.
9
In the wake of the UNCLOS rul-
ing, China has also pursued a new
legal basis for its territorial inter-
ests in the South China Sea. It has
done so by re-packaging its sover-
eignty claims to appear more con-
sistent with UNCLOS. Employing
a new legal tactic referred to as a
legal warfare, or ‘lawfare’ ap-
proach, China’s ‘nine-dash line’
narrative has been de-emphasized
in favour of a ‘Four Sha’ claim.
10
Translated as ‘four sands’, this new
position sees China asserting sov-
ereignty over four island chains:
the Pratas Islands, Paracel Is-
lands, Spratly Islands and Mac-
clesfield Bank area. In adopting
this approach, China has at-
tempted to strengthen its legal
claims in the South China Sea by
claiming the Four Sha as part of
Southgate
Indo-Pacific Perspective │18
China’s 200-mile Exclusive Eco-
nomic Zone (EEZ), and by assert-
ing that they are part of China’s
extended continental shelf.
11
As
noted by two prominent interna-
tional legal experts, while “this
new Chinese legal strategy is even
weaker than the Nine-Dash Line
given [that] it clearly violates UN-
CLOS,” China “may have con-
cluded that it can better shape (or
undermine, depending on your
viewpoint) the law of the sea by
adopting UNCLOS terminology.”
12
Thus China’s ‘Four Sha’ claim at-
tempts to circumnavigate existing
law and re-conceptualize the exist-
ing rules-based order in support of
Chinese state interests.
Regimes, Sovereignty and
Power
China’s actions raise a number of
interesting questions regarding the
importance of regimes in the inter-
national system and what happens
when states seek to pursue their
own interests to uphold state sov-
ereignty. According to Hans Mor-
genthau, “international law owes
its existence and operation to two
factors, both decentralized in char-
acter: identical or complementary
interests of individual states and
the distribution of power among
them.”
13
In many respects, power
dynamics are at the center of inter-
national law enforcement, whereby
“it makes it easy for the strong
both to violate the law and to en-
force it, and consequently puts the
rights of the weak in jeopardy.”
14
Legal rules therefore only serve to
satisfy the interests of the most
powerful. This is supported by Rob-
ert Gilpin, who argues that “the
primary foundation of rights and
rules is in the power interests of
the dominant group or states in a
social system.”
15
China’s reaction
to the UNCLOS South China Sea
ruling demonstrates how interna-
tional laws exist and operate on
the basis of powerful state inter-
ests. Great Powers will seek to un-
dermine existing laws when con-
flictual matters of state sover-
eignty and territorial integrity are
at stake. The doctrine of sover-
eignty is both an operating princi-
ple enshrined in international law
and a principle that can be used as
a tool to circumvent or manipulate
international law in support of
state interests.
16
Underlying this
argument is the crucial role of
state power and the distribution of
capabilities in the international
system.
China’s largely successful attempts
to reconfigure international law in
the South China Sea is evidence of
its growing regional and interna-
tional power. It is also testament
to the continued applicability of re-
gimes insofar as they can be used
Do Regimes Matter?
Indo-Pacific Perspective │19
to support a state’s agenda. As this
case study shows, a powerful state
will seek to challenge international
law if it is in its interest to do so,
particularly as it relates to a core
security concern such as state sov-
ereignty. This treatment of inter-
national law is certainly not new,
nor limited to actions conducted by
China. However, it is indicative of
the type of behavior we can expect
to see repeated as China seeks to
exert its influence over the Indo-
Pacific as its power rises. If suc-
cessful, a new type of rules-based
order may develop, one that does
not necessarily reflect the existing
status quo. As far as the existing
order reflects US interests, Great
Power security competition cannot
be ruled out. For smaller states in
the international system, the
Notes
1 “Obama says China bullying smaller nations in
South China Sea row,” The Guardian, April 10, 2015,
https://www.theguardian.com/.
2 Ministry of Foreign Affairs of the People’s Republic
of China, “Position Paper of the Government of the
People’s Republic of China on the Matter of Jurisdic-
tion in the South China Sea Arbitration Initiated by
the Republic of the Philippines,” December 07, 2014,
http://www.fmprc.gov.cn/.
3 Permanent Court of Arbitration, The Hague, “Press
Release: The South China Sea Arbitration (The Re-
public of the Philippines v. The People’s Republic of
China,” July 12, 2016, https://pca-cpa.org/.
4 Richard Javad Heydarian, “Has Duterte’s China
engagement backfired?,” Asia Times, July 14, 2017,
http://www.atimes.com/.
UNCLOS ruling will undoubtedly
act as a valuable lesson: that while
all states, regardless of their size,
have recourse to the international
courts, little can be done to enforce
a ruling if a powerful state chooses
to ignore it. ■
Dr. Laura Southgate
Dr. Southgate is lecturer in politics
and international relations at As-
ton University, deputy co-director
of the Aston Centre for Europe,
and author of ASEAN Resistance to
Sovereignty Violation: Interests,
Balancing and the Role of the Van-
guard State (Bristol University
Press, 2019).
5 Jim Gomez, “Duterte says he’ll set aside sea feud
ruling against China,” Philstar, December 17, 2016,
http://www.philstar.com/.
6 Gomez, “Duterte says he’ll set aside sea feud ruling
against China.”
7 Ibid.
8 Manuel Mogato, “Philippines says China agrees on
no new expansion in South China Sea,” Reuters, Au-
gust 15, 2017, https://www.reuters.com/.
9 “As attention focuses on North Korean threat, Bei-
jing quietly expanding South China Sea militarisa-
tion,” Japan Times, November 1, 2017,
https://www.japantimes.co.jp/.
10 Mark J. Valencia, “China, US Both Using Lawfare
in the South China Sea,” The Diplomat, October 12,
2017, https://thediplomat.com/.
11 Patricia Lourdes Viray, “South China Sea: China
has new claim to nibble more land from Taiwan, Vi-
etnam, the Philippines? “The Four Sha Claim,”
Philstar, September 27, 2017.
Southgate
Indo-Pacific Perspective │20
12 Julian Ku and Chris Mirasola, “The South China
Sea and China’s “Four Sha” Claim: New Legal The-
ory, Same Bad Argument,” Lawfare, September 25,
2017, https://www.lawfareblog.com/.
13 Hans J. Morgenthau, Politics Among Nations: The
Struggle for Power and Peace (New York: Alfred
Knopf, 1965), 277.
14 Morgenthau, Politics Among Nations, 294.
15 Robert Gilpin, War and Change in International
Politics (Cambridge: Cambridge University Press,
1981), 35.
16 Anthony Clark Arend, “Do Legal Rules Matter?
International Law and International Politics,” Vir-
ginia Journal of International Law 38, no. 2 (1997):
107–53, at 142.
Disclaimer
The views and opinions expressed or implied in
JIPA are those of the authors and should not be
construed as carrying the official sanction of the
Department of Defense, Air Force, Air Education
and Training Command, Air University, or other
agencies or departments of the US government
or their international equivalents.
