However, the timing and effectiveness of these legal actions suggest countries see international law as a tool for public image campaigns, serving both strategic and diplomatic purposes. This is particularly evident in the South China Sea dispute between the Philippines and China.
This approach offers several potential advantages. First, invoking international law lets countries position themselves as adherents to a rules-based international order, garnering support and sympathy from the global community. For the Philippines, framing its claims in the South China Sea through Unclos enhances its
moral and legal standing.
The Philippines portrays itself as a law-abiding and responsible actor on the world stage, strengthening its negotiating position. The narratives of
China’s bullying behaviour and environmentally damaging activities resonate strongly with domestic and international audiences. This boosts the image of Filipino leaders as courageous individuals willing to confront a powerful nation.
The central legal issue revolves around the relationship between Unclos as treaty law, which the Philippines emphasises, and
historic rights as customary international law, upon which China bases its claims. However, China’s side of the story can sometimes go unheard within the international community.
Second, there is the notion that international law provides smaller or less powerful countries with a platform to challenge larger, more powerful adversaries. By emphasising its commitment to principles and international norms, the Philippines aims to offset China’s economic and military strength. The 2016 arbitration panel ruling in the Philippines’ favour seemed to send a message how legal recourse can amplify the voice of smaller nations.
Meanwhile, China finds itself in a weakened position before the international community. Its
decision to walk away from the arbitration proceedings undermined the legitimacy of its legal maritime claims. Consequently, China is portrayed as a major state seeking to exert its military and economic power over smaller states.
Furthermore, the strategic use of international law can shape international opinion and influence foreign policy decisions of other states. By highlighting
China’s non-compliance with international rulings, the Philippines is swaying global opinion and potentially encouraging other nations to support its stance, isolating China diplomatically.
However, is the Philippines truly pursuing a legal outcome? The procedures of the Philippines’ submission to the CLCS are beyond question. Any coastal state that has ratified Unclos has the right to submit applications to the CLCS. Similarly, China
sent a note verbale on June 18 to the United Nations secretary general, arguing that any submissions regarding the disputed waters in the South China Sea should not be considered.
Meanwhile, using international law as a tool for public image campaigns has its limitations. Countries could be accused of hypocrisy if they invoke international law only when it is convenient. The complexity and interpretative nature of international law allow countries to manipulate legal arguments to fit their narratives.
Additionally, international law often lacks robust enforcement mechanisms, meaning victories in courts or tribunals might not
translate into real change on the ground. The outcome of the 2016 arbitration did not make a meaningful contribution to resolving the main issues between the Philippines and China but instead further escalated tensions.
Another implication is whether China will turn to international litigation or arbitration to pursue its maritime claims. Will China’s conventional approach of bilateral negotiations and consultations remain its preferred method for settling interstate disputes?
Alternatively, will it come to accept that third-party dispute resolution has a pivotal role to play in resolving issues with neighbouring countries? The Philippines’ legal manoeuvring could prompt China to re-evaluate its usual approach to resolving maritime disputes in the South China Sea.
This commentary was originally released by South China Morning Post on June 25, 2024
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