South China Sea, When Beijing Loses the Legal Argument and Turns to Force

• China’s Rejection and its Impact: China’s rejection of the 2016 arbitral ruling on the South China Sea dispute has led to increased pressure on the Philippines.
• Regional Response: This pressure has backfired, pushing the Philippines and other regional partners to strengthen alliances and security cooperation in the Indo-Pacific.

For years, Beijing has presented the South China Sea dispute as a complex web of historical claims, contested sovereignty and competing interpretations of international law. At the Seoul Defense Dialogue, Philippine Defense Secretary Gilberto Teodoro needed only a few words to bring the issue back to its essence.

During his remarks on maritime security and UNCLOS, Teodoro received a note that, according to South Korean media, came from the office of the defense attaché at the Chinese embassy. The message reiterated Beijing’s position on the 2016 South China Sea arbitration. The ruling, it said, was illegal, null and void, and China would not recognize any claim based upon it.

Teodoro read the note aloud. When he reached the passage stating that Beijing did not recognize the arbitral award, he replied simply: “Of course, because you lost.”

It was a quip that encapsulated a decade of confrontation. China ratified UNCLOS in 1996. In 2013, the Philippines initiated arbitration proceedings under the Convention itself. Beijing refused to participate, challenging the tribunal’s jurisdiction, but the proceedings continued and a ruling was issued in July 2016.

The tribunal rejected the legal basis for China’s claims to so-called “historic rights” within the nine-dash line and ruled against Beijing on several aspects of its activities in waters claimed by Manila. The award is final and binding on the parties. Ten years later, China continues simply to declare it “null and void.”

In the South China Sea, Beijing is seeking to consolidate through physical presence and coercion what it failed to secure through international law.

Scarborough Shoal offers perhaps the clearest example. After the 2012 standoff with Manila, China established an almost permanent presence around the shoal, which lies within the Philippines’ exclusive economic zone. In recent years, Chinese Coast Guard patrols have increased, accompanied by buoys, floating barriers and other structures.

In July, Manila accused Chinese vessels of using water cannons against Philippine government ships near the shoal on two consecutive days. During one of the incidents, a Chinese vessel reportedly came within about seven meters of a Philippine boat. Beijing described its actions as legitimate “control measures.”

Only days earlier, another incident had occurred at Second Thomas Shoal, where Manila maintains its presence through the BRP Sierra Madre, the ageing warship deliberately grounded there in 1999. In recent years, Philippine resupply missions have repeatedly been obstructed through blockades, ramming, water cannons and aggressive manoeuvres.

The strategy has become routine. Beijing generally avoids open military confrontation, operating just below the threshold that might trigger an armed response. Yet the Coast Guard, maritime militia, continuous patrols, barriers and pressure on rival vessels allow China to alter conditions at sea incrementally.

A water cannon today, a barrier tomorrow, permanent patrols thereafter. Eventually, contested waters begin to look like waters administered by China.

There is no need formally to occupy territory if a permanent presence can be established while making it increasingly difficult for others to maintain theirs.

Scarborough Shoal clearly illustrates this process. In April, China conducted naval and air “combat readiness” patrols around the shoal as the Philippines and the United States held the Balikatan exercises alongside Australia, Japan, Canada, France and New Zealand.

More recently, Manila reported the presence of the Chinese geological survey vessel Haiyang Dizhi Shihao, equipped with seabed drilling capabilities, which it said had spent 25 days inside the Philippine EEZ without authorization, operating for an extended period around Scarborough Shoal.

The note handed to Teodoro in Seoul thus becomes almost a diplomatic representation of what is happening at sea. China creates a reality through its presence and then expects that reality to become the basis for discussion. When international law contradicts that approach, Beijing simply rejects its validity.

But this policy is also producing an effect that China may have underestimated. Under Ferdinand Marcos Jr., Manila has progressively moved away from the idea that its confrontation with Beijing can be managed exclusively on a bilateral basis. The United States remains the Philippines’ principal security guarantor, but a much broader network is taking shape around that alliance.

The Philippines has strengthened military cooperation with Japan and Australia, concluded agreements with Canada and New Zealand, signed a Visiting Forces Agreement with France and begun negotiations on a similar arrangement with the United Kingdom. South Korea has also become an important partner in the modernization of the Philippine Armed Forces, supplying Manila with FA-50 aircraft, frigates and other systems.

It is therefore significant that Teodoro’s verbal clash with Beijing took place in Seoul. During his visit, he had already observed that China tends to exploit any strategic vacuum in the region. But he added a more important point: it is Chinese pressure itself that is pushing Asian states towards increasingly close security cooperation.

This is perhaps the central contradiction in Beijing’s strategy. China denounces the strengthening of US alliances and partnerships across the Indo-Pacific as a strategy of containment. Yet every new incident in the South China Sea reinforces precisely the argument made by those who regard those alliances as indispensable.

China’s material superiority over the Philippines is enormous. Manila cannot compete with the size of the Chinese Navy, Coast Guard and maritime militia. But through a network of alliances and partnerships, it can make any attempt to translate that superiority into uncontested control of the sea considerably more costly.

Nor does the problem concern Manila alone. Vietnam, Malaysia and Brunei have maritime disputes with Beijing. Indonesia has repeatedly confronted Chinese vessels near the Natuna Islands. Japan faces persistent pressure around the Senkaku Islands in the East China Sea. Taiwan experiences the same dynamic on an even larger scale.

The question, therefore, is not simply who owns a particular rock. It is what rules should govern the seas of Asia: international law, or the ability of the region’s largest power progressively to impose its will.

This is precisely why, ten years later, the 2016 award continues to pose a problem for Beijing. China can declare that it does not recognize it. It cannot erase it, nor can it prevent other states from using it as a reference point to challenge Chinese claims.

Above all, it cannot avoid the political consequences of its own strategy.

Beijing argues that the growing network of military alliances and partnerships across the Indo-Pacific is destabilizing the region. Manila argues exactly the opposite: it is Chinese behaviour that has made that network necessary.

That is why Gilberto Teodoro’s response resonated so widely. China had once again declared that it did not recognize the arbitral award.

“Of course, because you lost.” Behind the irony lies a much more serious question. If a major power can sign up to international rules and disregard them when the outcome does not suit it, the problem no longer concerns China and the Philippines alone.

It concerns the entire Indo-Pacific and the fundamental principle that force, by itself, cannot become law.