Troubled waters in the South China Sea

China’s attempts to assert its territorial claims in the South China Sea have recently led to clashes with the Philippines, says Helena Legarda. Negotiated solutions, including about a code of conduct to manage such dangerous incidents, have become elusive.

Tensions are flaring once again in the South China Sea. Over the past few weeks, China and the Philippines have been facing off, as Beijing attempts to tighten its grip over territories it claims are its sovereign waters and Manila puts forward a more forceful reaction to China’s activities.

The disputed Scarborough Shoal and Second Thomas Shoal are at the eye of the storm. In September, China's coastguard established and enforced a 300-meter-long floating barrier near the Scarborough Shoal, which the Philippine coastguard dismantled. There have also been several incidents where Chinese ships have blocked resupply missions for Manila’s outpost, the BRP Sierra Madre, a crumbling ship that already served in World War II and has been grounded in the Second Thomas Shoal—which sits within the Philippines’ exclusive economic zone (EEZ)—since 1999. In late October, this attempted blockade even resulted in a minor collision between a Chinese and a Philippine vessel.

Beijing has blamed Manila for these tensions, and it has justified its actions as legitimate activities to safeguard China’s sovereignty over an area it claims as part of its own territory. The Chinese leadership has never accepted the 2016 Court of Arbitration ruling that dismissed China’s expansive claims to the whole South China Sea (also known as the “nine-dash line”) as invalid. Beijing’s response has been “four noes”—“no acceptance, no participation, no recognition, and no implementation.”

It is Washington, however, that has most often been on the receiving end of Beijing’s ire for instigating the tensions and using the Philippines as a pawn to contain China. The worsening US-China rivalry is certainly the background against which this situation is unfolding. But these renewed tensions are not just about US-China competition.

Creating facts on the ground

China’s more aggressive actions in the region are an expression of Beijing’s more assertive foreign and security policy under President Xi Jinping. Since 2013, China has focused on creating facts on the ground, so to speak, in the South China Sea mostly by building artificial islands, and it has increasingly militarized its presence in the region.

But this flare-up is also closely linked to Beijing's dissatisfaction with the changes to the Philippine’s foreign policy since President Ferdinand "Bongbong" Marcos came to power in 2022. Marcos has not only reversed his predecessor, Rodrigo Duterte’s, more Beijing-friendly stance, but he has also reembraced the Philippines’ alliance with the United States. In February, the two partners agreed to expand their Enhanced Defense Cooperation Agreement (EDCA), adding four new locations for American military sites in the Philippines.

Besides, Manila has also adopted a new strategy of publicly denouncing and publicizing China’s actions—shining a spotlight on Beijing’s gray zone operations by releasing videos of encounters with Chinese coastguard ships and inviting international journalists onboard its own vessels. While Beijing seemed initially taken aback by this new tactic, leading to a lull in its activities, it is now forcefully trying to reiterate its control over the region.

In search of a code of conduct

A military confrontation between China and the Philippines remains unlikely. Manila is a US treaty ally, and the Biden administration has rushed to clarify that it would intervene in defense of the Philippines if open conflict were to break out. Instead, Beijing seems more interested in playing the long game, expanding its control over the South China Sea through operations that remain somewhat ambivalent and do not involve the People’s Liberation Army Navy directly—a strategy that has served it well in the past.  

But Manila is no longer playing along, and the increase in tensions, alongside the growing military activity in the region, is creating an unstable environment that could easily lead to escalation, even if accidentally. A risky moment will come when the Sierra Madre finally succumbs to the sea and sinks, forcing Manila to evacuate the small contingent of marines it has onboard. At that point, Beijing is likely to try to seize control of the shoal, forcing Manila to respond.

These tensions may be new, but the problem is an old one. Territorial disputes in the South China Sea date back decades and they flare up periodically. Durable peaceful solutions have remained elusive, with ASEAN, the 10-country Association of Southeast Asian Nations, unable to reach consensus, and individual nations too weak to negotiate bilaterally with China.

With a long-term solution to the disputes seemingly out of reach, ASEAN member states are making one more push to conclude a code of conduct for the South China Sea with Beijing. The announcement that negotiations were still ongoing and would be concluded by 2026 was one of the key outcomes of the July 2023 ASEAN-China Foreign Ministers’ Meeting in Jakarta.

Originally devised as a tension-management mechanism that would set guidelines for activities in the South China Sea, the code of conduct was also expected by many in ASEAN to create space to tackle maritime boundary negotiations. But the process is currently on life support. Negotiations have been moving at a glacial pace for more than 20 years, with effectively no progress.

Time to give up?

The process faces even more of an uphill battle today. On paper, Beijing may still be pushing for a code to be concluded. But in reality, China has demonstrated very little willingness to negotiate on its sweeping claims, or to accept any limitations to its behavior in waters it considers part of its sovereign territory. And even if an agreement was reached, the code of conduct is almost bound to end up being an unenforceable document that will do little to constrain China’s activities.

All options to manage tensions in the South China Sea and to prevent a conflict with clear escalatory potential deserve exploration. But after 20 years, it may be time to reassess the value of these negotiations. Beijing has been dragging its feet on the talks and it has been using the time to increase its operational control over the South China Sea and to improve its military capabilities. In this new strategic landscape, the chances that Beijing may accept binding, enforceable constraints to its operations in the region are slim, and that it would be willing to start negotiations on maritime boundaries even slimmer. The strategic rationale for ASEAN’s negotiations with China, therefore, has effectively disappeared.

ASEAN member states may need to explore a start to their own boundary negotiations, without waiting until a code of conduct is agreed upon, and to work on building a more united front vis-à-vis China’s behavior in the region. Cooperation and engagement with international partners and multilateral organizations should also be part of the strategy. And Europe has a role to play in this regard, by publicly speaking up against China’s actions, making clear that they are not going unnoticed, and by stepping up its presence in the region in support of international law and freedom of navigation.

This article was first published by IP Quarterly on November 2, 2023.