The Law That Failed: From Legal Dispute to Soft Power in the South China Sea

The increasing global domination of a country does not necessarily have a positive impact on international security relations. Relations between Indonesia and China have been increasingly volatile, especially since the announcement of Beijing’s controversial claims of a nine-dash line in the South China Sea (SCS) to the United Nations in 2010 (Arif, et al, 2019). The object of the SCS dispute focuses on the two largest islands, namely the Spratly Islands (claimed by Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam) and Paracel Islands (claimed by Taiwan and Vietnam) (Wiranto, et al, 2017). International parties not limited to countries within the nine-dash line border also remarked on China’s claims, such as the United States (US). Various lawsuits based on international law and diplomacy were carried out. Unfortunately, until the current day, these efforts have not produced results. Legal efforts alone cannot produce satisfactory results without other efforts, such as diplomacy.

The SCS dispute is based on UNCLOS as the legal basis for filing claims as an agreement that forms the basis for the law of the sea and sea activities, including business activities, the environment, management of sea waters, and disputes related to the sea. UNCLOS has also been ratified by China and all ASEAN countries (Wiranto, et al, 2017), as in the Philippines’ lawsuit against China over the SCS in the Permanent Court of Arbitration (PCA) based on Annex VII of UNCLOS. This legal basis states that China’s claim to the “nine-dashed line” is not in accordance with applicable international legal regulations. Several articles which form the main legal basis in SCS disputes include Article 76, Paragraph 8 of the UNCLOS. UNCLOS allows countries to set an EEZ limit of 200 nm from a coastline or habitable island. Article 121 of UNCLOS also provides definitions related to islands and provisions for territorial sea, additional zones, exclusive economic zones, and the continental shelf of an island. Issues arise when claimants have different definitions from each other and start to acquire territories that are considered not theirs, moving less following the statements of these countries, which state “agreed to recognize the principles of UNCLOS.”

China’s Claims and Policy in the SCS Dispute

In his analysis, Zhang (2017) identified that there are at least three schools of thought that underlie China’s policy towards the SCS. First, a pragmatic group is trying to maintain sovereignty and stability in the SCS with limited disruption of regional stability. Second, hardliners see this policy as part of China’s efforts to maximize their rights and power in the SCS. Third, moderates recognize the need to protect rights and emphasize the importance of support from Southeast Asian countries to guarantee China’s overall goals. Zhang (2017) sees that pragmatic groups are dominant in directing policy toward the SCS to shift from a “stability first” approach to a “rights first” approach. This rights-first approach indicates that China is willing to cause disruption in its interests. However, from a pragmatic point of view, these interests and power are not the main goal but are a means of realizing China’s interests.

This can be seen from the subsequent controversies arising in the interactions between China and Southeast Asian countries. Apart from the incident in the Spratly Islands, which provoked the US to get involved, other incidents, such as the Scarborough Shoal, also demonstrated China’s ambitions toward the SCS. Several countries are experiencing stuttering in dealing with this condition because China is moving into the gray zone. According to the Cambridge Dictionary, a gray zone is “activities by a state that are harmful to another state and are sometimes considered to be acts of war, but are not legally acts of war.” (Supriyanto, 2022).

International Legal Stances and ASEAN’s Responses

Several scholars such as Jacobs (2013) accuse China of twisting the facts of its historical claims, which are not only against positive international law but also inconsistent with the actual historical situation. China is accused of claiming the past glories of the Mongol (1279-1367) and Manchu (1644-1911) empires, who in the past ruled mainland China, but were not part of the Chinese Nation. Although it has not touched on international legal issues, China’s presence in the SCS has raised concerns among Southeast Asian countries since the 1970s, which was finally “resolved” with the drafting of a Declaration on the Conduct of Parties (DOC) in the SCS signed by China and ten ASEAN member countries in 2002 (Zhang, 2017).

China’s movement in unilateral claims on the nine-dash line is widely seen as a “deviation” from the law of the sea agreement itself (Wiranto, et al, 2017).  In 2006, China filed a declaration to exclude all disputes involving sovereignty and the determination of maritime boundaries from the dispute settlement procedure in Section 2 Part XV, which is subject to limitations stated in Section 3 Part XV UNCLOS (Wiranto, et al, 2017). As stated in Appendix VII, UNCLOS facilitates the settlement of disputes under Article 287(3).

In 2013, the Philippines sued China through the Permanent Court of Arbitration (PCA). China did not reply at all in the arbitration process. PCA then resulted in a decision that China’s claim to the nine-dash line was only made unilaterally, not based on law, and contrary to the 1982 UNCLOS. The PCA asserted that China violated Articles 56 and 58 (3) of UNCLOS by violating the Philippines’ sovereign rights to non-biological resources in its EEZ jurisdiction as a coastal country (Jessica & Nanda, 2023). China is also considered to have violated Article 73 of UNCLOS, which states that coastal states can board, inspect, arrest, and carry out judicial proceedings against ships when necessary to ensure compliance with laws and regulations made under UNCLOS provisions.

UNCLOS has clearly defined guidelines for the area of ​​territorial waters, baselines, island boundaries, exclusive economic zones, sea boundaries, continental shelf, and SCS dispute resolution (Miranda & Maljak, 2023). However, China has been recorded as being involved in island building and converting small islands to produce an EEZ that stretches for 200 miles (Miranda & Maljak, 2023). China claims rights to uninhabitable islands and is building “new islands” to expand its territory. This is contrary to Article 121 (3) UNCLOS. Based on Appendix VII of UNCLOS, a court was formed to arbitrate the SCS dispute through arbitration in 2016. The arbitration decision is that no claim to China’s “historical rights” in areas included in the nine-dash line does not have a strong legal basis (Arif, 2020).

UNCLOS 1982 did not legalize claims based on history, but what Mastro (2021) called “a deviation and abuse of international law” is a much more complicated matter. International law recognizes the concept of an archipelagic state, and China is not one of them. However, China considers them to have rights as an archipelagic nation, so they claim that they can regard inter-island waters as inland waters of the country, which other countries cannot enter or transit without permission. China has drawn a straight baseline and treated it as inland waters in the Paracel and Spratly Islands. China has also claimed a territorial sea 12 miles wide from the Paracel baseline and Spratly. Through these three positions alone in the inland waters, territorial sea, and EEZ, China claims about 80% of the SCS.

Mastro (2021) also views that China considers the territorial sea as the exclusive right to make and implement its laws without foreign interference. This is contrary to UNCLOS, which states that all ships can enjoy the right of innocent passage through the territorial seas of other countries. Still, the additional zone is part of international waters where the state has no right to control security-related activity. China claims 200nm from the edge of the territorial sea as an EEZ, which means China considers that they have the right to carry out defense activities. This view is opposed by the US and Australia but is accepted by several other countries such as Argentina, Brazil, India, Iran, and others.

However, in 2020, the US became involved again in this issue in response to China’s Note Verbale No. CML/14/2019 was drawn up in response to Malaysia’s Note Verbale confirming the 200-mile limit under the 2009 Malaysia-Vietnam Joint Submission to the Commission on the Limits of the Continental Shelf (CLCS). However, the US did not communicate their response to China’s Note Verbale to CLCS, which was possibly caused because the US also did not ratify UNCLOS and their response was limited to China’s Note Verbale and did not discuss Malaysia’s Note Verbale which was the basis for the diplomatic note battle (Thao, 2020).

This indicates that it is impossible to make international law the only solution to solving the SCS dispute. Southeast Asian countries and China, have decided to move the arena from international legal battles, which China considers detrimental and impossible to win, into the diplomatic arena. Viewed from the point of view of political realism, China’s position is also more advantageous with the intensification of China’s influence in the international geopolitical arena. For example, China’s military strength in the SCS was completed in 2019. Southeast Asian countries, although they appear “timidly” in confronting China, are also preparing their military forces in the SCS (Arif, 2020). What drives the failure of international law to contain China’s ambitions for the SCS?

China’s Soft Power: A Tool for the SCS Dispute?

Although in international law, ASEAN has benefited more from UNCLOS, China has and is still building bargains as a geopolitical power that is increasingly influential globally, especially in the Asian region. Discussing Beijing’s power will not be complete without discussing “soft power.” Since the 1990s, China has built “soft power” in getting closer to ASEAN countries through cultural and economic diplomacy, such as by becoming an ASEAN dialogue partner, joining ARF, and becoming part of ASEAN+3 until the approval of the ASEAN-China Free Trade Agreement. Various parties stated that China’s soft power contributed to the ASEAN’s responses, including Indonesia, against China’s unilateral claims in the SCS (Ginanjar, et al, 2023).

Experts are of the view that ASEAN has failed to facilitate the interests of its member countries which are SCS claimants in the SCS dispute with China (Ba, 2016). China’s economic and military superiority in recent decades has affected different responses from ASEAN countries in conflict in the SCS dispute. This puts the two sides, China and ASEAN, in a dilemma. This dilemma arises, as Hu (2023) explains as an impossibility to realize the main goals of each party perfectly. This impossibility is at least due to two factors, externally. First, the goals that are trying to be achieved have the potential to cause conflict. Second, each actor in the conflict must realize a certain consensus as a middle way, which rarely fulfills their goals.

Ultimately, it is impossible to make success something rigid in a dichotomous perspective between success and failure. Instead, the SCS dispute between ASEAN and China needs to be viewed on a continuum scale regarding its success for each party. This is where the internal factors of each party influence the extent of their influence in the SCS dispute. Hu (2023) divides these internal factors into four: coherence, consistency, power, and recognition. Based on these four factors, it is undeniable that China’s position is far more advantageous. It is much easier to realize and maintain the coherence and consistency of one country’s goals than international organizations, even if these organizations are regional. In terms of power and recognition, China has also benefited from its track record of international policies that have influenced Southeast Asian countries, including the BRI (Belt and Road Initiative) project, which is still being intensively carried out by China, although according to Hu (2023), China’s influence on each ASEAN country is not as strong as many scholars imagine.

This imbalance of power and recognition is exacerbated by ASEAN’s incoherence and consistency in handling the SCS dispute. The attitude of each ASEAN country towards China oscillates between bilateral interests with China and its interests in ASEAN sovereignty and membership. Thailand and Cambodia clearly stated that the SCS dispute must be discussed internationally with an ASEAN-China relationship approach. On the other hand, ASEAN countries have also prevented the SCS dispute from breaking their relations with China. Vietnam’s concern, for example, was expressed by the President of Vietnam, Nguyen Phu Trong, who stated that Vietnam must maintain stable external relations with China while at the same time maintaining its territory. Something similar happened with the Philippines when Foreign Secretary Cayetano wanted to set aside the “victory” in his lawsuit at the PCA to maintain good relations with China by “not letting this dispute destroy the good relations between the Philippines and China.”

In 2009, the Philippines refused to participate in Vietnam and Malaysia’s joint submission of the continental shelf to the United Nations. A similar thing happened in the Cambodia case in 2012. Cambodia rejected Vietnam and the Philippines’ submission to the 2012 AMM communique which pressured China. At the same time, Thailand, Brunei, Laos, and Myanmar see a similar concept as important for improving and maintaining good relations with China. Malaysia and Indonesia also pushed for phrases that de-emphasized the conflict, which Cambodia agreed to. This shows that the existence of different views within ASEAN countries has brought about the SCS dispute tensions, not only limited to regional interests but also accompanied by national interests. Indonesia has not recognized the gray zone. The response given by Indonesia in dealing with the gray zone is limited to the unintended consequences of implementing the Joko Widodo administration’s vision of Indonesia as a Global Maritime Fulcrum. Presidential Regulation No. 8 in 2021 on General Policy on State Defense 2020–2024 has stated “violations by the Chinese Coast Guard in the North Natuna Sea” (Supriyanto, 2022) The polemic over the SCS dispute is becoming increasingly complicated because it discusses not only the role of law and international agreements within it but also China’s social and political relations with ASEAN amidst rivalry with the US.

When its position became even more advantageous under international arbitration in 2016, ASEAN failed to seize the opportunity. Except for Vietnam, which emphasizes its advantage over UNCLOS, which is legally binding, other ASEAN countries such as Malaysia, Brunei, and Indonesia only issue normative statements for peaceful resolution and mutual respect. Singapore takes a neutral position. Cambodia did not issue a statement. Meanwhile, Thailand, Myanmar, and Laos emphasize the implementation of the 2002 DOC, which will be followed up with the COC (Storey, 2016).

How Indonesia Should Respond: ASEAN Leadership

In such conditions, inevitably, the main role falls on ASEAN leadership to be able to bring together each country in one coherence and consistency to resolve the SCS dispute as ASEAN. Indonesia’s gesture itself looks normative. However, domestically, the government benefited from positive news that framed the Indonesian government as having succeeded in securing the SCS and the Natuna Islands (Meyera, et al, 2019). This is inseparable from the populism that has shaped Indonesia’s foreign policy since the era of Susilo Bambang Yudhoyono (SBY) and continued during Joko Widodo’s reign. Even though it also uses UNCLOS and the 2016 Arbitration Tribunal Award, the main approach of Joko Widodo’s administration is a publicly conciliatory approach by prioritizing assertive diplomatic measures in bilateral and multilateral fora and fostering defense cooperation with China’s rivals (Raditio & Yeremia, 2022).

Indonesian foreign policy always refers to the principle of being independent and active. However, its meaning and implementation often invite statements, especially since this principle is generally considered neutral. Neutrality becomes problematic because it is only carried out as an impartial position and establishes good relations with all parties and tends to be passive (Dharmaputra, 2022). This contradicts Indonesia’s monumental foreign policies, such as the Non-Aligned Movement and the Asian-African Conference, which is not neutral, but instead challenges the two major geopolitical powers with its anti-colonial position (Dinkel & Skinner, 2019; Weber & Winanti, 2016). As Hatta (1951) said in facing the two rocks (two big political forces: the Western Bloc and the Eastern Bloc), “Our government must continue to base our struggle on the adage: believe in yourself and fight for the strength and ability that we have.“

Article 1 Paragraph 2 of Law Number 37 of 1999 concerning Foreign Relations explains the direction of Indonesian Foreign Policy illustrates that Indonesia is in an “impartial” condition but is a driving force for world peace (Rafikasari, 2020). Independent and active politics do not always translate to neutral politics, but politics that liberates state behavior and responses to global problems by contributing to conflict resolution.

Indonesia’s influence in ASEAN is getting bigger with the latest policies and targets, such as Indonesia’s declaration as a Global Maritime Fulcrum and as the center of the developing Indo-Pacific order (Nabbs-Keller, 2020). Following Indonesia’s ideals, namely the doctrine of maritime development and defense expansion, Indonesia can increase its political involvement and leadership in ASEAN to strengthen unity. As Australian Prime Minister Scott Morrison acknowledged, “Indonesian President Widodo’s vision and leadership in developing ASEAN’s ‘Outlook on the Indo-Pacific” (Nabbs-Keller, 2020).

Conclusion

UNCLOS has regulated the sovereignty and control over the SCS. In the SCS dispute, UNCLOS benefits ASEAN. This advantage was also followed by the 2016 Arbitral Tribunal Award which further strengthened the position of UNCLOS claimants in the SCS. China’s position is increasingly desperate after its historical claims were rejected based on Articles 56, 58 (3), and 76 UNCLOS. Nevertheless, the problem continues. International legal settlement cannot be the only solution. Beijing’s “soft power” poses a dilemma for ASEAN countries to prioritize bilateral or regional interests, territorial sovereignty or economic assistance. Conditions are increasingly complicated because of US involvement. China’s pragmatic approach diverted the SCS dispute into a diplomatic matter and contributed to preparing the SCS Code of Conduct to minimize the possibility of US involvement. However, this condition can also benefit Southeast Asian countries to reclaim the advantages they have gained through UNCLOS and the 2016 Arbitral Tribunal through ASEAN.

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Louise Shania Sabela is a law student at Pelita Harapan University. She can be found on her LinkedIn.

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