T

he July 12 ruling by the arbitral tribunal of the UN Convention on the Law of the Sea (UNCLOS), issued through the Permanent Court of Arbitration serving as a registry, has recently created a paradoxical strategic atmosphere in the region.

On the one hand, some hailed the ruling as the victory of international law and for a principled, rules-based order. Observers noted, for example, how a “small country” like the Philippines can take on a “big country” like China and won. Indonesian diplomats, meanwhile, are also relieved that our long-held position on the illegality of China’s nine-dash line is vindicated.

But on the other hand, China’s defiance of the ruling and its preceding processes — declaring them “null and void” — has generated a wave of pessimism among others in the region. After all, if Beijing can simply ignore a treaty it has ratified when it does not suit its interests, then what guarantees do we have that it will respect other international commitments, including the ASEAN Treaty of Amity and Cooperation, for example?

This paradox highlights one of the prevalent assumptions underlying the dispute in the South China Sea — which the heart of the matter is who is right or wrong under international law, UNCLOS in particular. But here’s why international law is not a panacea, nor should it be Indonesia’s only refuge in dealing with the problem.

One, the South China Sea is perhaps the prime example of the use of legal documents and arguments in strategic competition between states — often dubbed “lawfare”. The substance or spirit of the law, while important in themselves, are not what matters. Instead, it is about strategically cherry-picking parts of the law to one’s advantage.

This is clearly seen, for example, in the odd reality that the US has not ratified UNCLOS but behaved accordingly while China has ratified but ignored it — at different times of their choosing as dictated to by their respective interests. Thus, while the barrage of legal debates over the tribunal’s ruling is important, we should not forget the South China Sea’s larger strategic stake: who gets to design what kind of regional order and to whom benefits.

Two, the “logic of consequences” — acting pragmatically driven by consequent goals — seems to matter more in the South China Sea than the “logic of appropriateness” — behaving according to existing norms—underpinning international law. This dominant logic of strategy is particularly the case because regional governments still think more about the domestic “audience cost” — who they aim or cater their policies or statements to—than external ones.

As the domestic audience cost is higher, short-term domestic legitimacy often matters more than long-term international reputation (generally cultivated when following international law, among others). As such, states might opt to “ignore” international law as long as they satisfy domestic political needs; even more so on strategic issues such as the South China Sea.

Put differently, while becoming a good international citizen may be appealing in the long run, it is difficult to expect governments to always favor international law at the expense of regime legitimacy or even survival, as Singapore’s Bilahari Kausikan recently suggested of China.

Third, the growth of lawfare and the importance of the domestic audience cost also points to one of the fundamental problems of international law, including UNCLOS: the absence of enforcement beyond the good graces and political will of the signatory parties. In other words, international laws in and of themselves necessary are never sufficient to solve strategic problems such as the SCS disputes.

Indeed, abundant research in political science suggests that institutions, of which international law is an example, are essentially epiphenomenal — basically without independent causal effect; more often than not, the effect is a function of some other factors, such as domestic legitimacy or military power. At best therefore, UNCLOS is nothing more than an “intervening variable” between state interests and compliance (with the tribunal’s ruling).

To exacerbate the problem, not only is UNCLOS’s utility epiphenomenal, but the convention itself is a mixed bag of compromises made over years of negotiations between the parties. As such, some of the crucial clauses, including the status of rocks, for example, or innocent passage, are by nature open to different interpretations.

That being said, while international law writ large is not a panacea to the South China Sea’s strategic challenges, developing more circumscribed, practical, and mutually agreed upon cooperative mechanisms at sea, such as the Code for Unplanned Encounters at Sea (CUES), is a worthy endeavor Indonesia should support.

In addition, we should also be cognizant of our dimming leadership in ASEAN, which has led to the grouping’s diminished centrality in both the management of the South China Sea (through the Code of Conduct process) as well as the broader development of the regional architecture. Jakarta’s hollow neutrality implied in the South China Sea “non-claimant” rhetoric, in particular, has led some of our regional partners to question our commitment to ASEAN.

Furthermore, as the South China Sea highlights the growing strategic significance of illegal fishing activities—as our recent encounters with China in Natuna waters have shown—the government should also start thinking about reforming our maritime governance system, particularly with regard to law enforcement and rules of engagement at sea involving the fisheries ministry, Navy, Maritime Security Agency (Bakamla) and police.

International law cannot bail us out from the proactive, consistent, and assertive political leadership required to tackle the herculean task of expanding prosperity, maintaining regional order, and cooperating under uncertainty while accounting for domestic politics and asymmetrical views of the strategic landscape.
__________________________________________

The writer is a researcher at the Centre for Strategic and International Studies (CSIS), Jakarta.