Director of the Asia Maritime Transparency Initiative, Gregory Poling published in January “How to Slay a Giant: Reviving the South China Sea Arbitration” on CSIS, which highlights the Philippines' efforts to enforce the 2016 arbitration ruling against China in the South China Sea dispute. The article explains that despite China has made it clear that it will not participate in the arbitration, the Philippines has increasingly leveraged international support and diplomatic channels.

As I see it, in the name of defending global justice, Poling creates two confusions.

The First Confusion: China is a “Giant to be Slayed” in the South China Sea Dispute

The false picture that China is acting as the Great Power in the dispute over the South China Sea has been painted throughout Poling’s commentary. He wrongly analogizes the South China Sea to the Chagos Archipelago. The intricate status of the Chagos Archipelago is rooted in the long-standing colonial history of Mauritius. 

Mauritius gained its independence with the trend of decolonization. In the course of independence, however, the US expressed its interest in establishing a military presence in the Chagos Archipelago. Satisfying the US request, the UK detached the Chagos Archipelago from Mauritius, and merged it into a new colony called “British Indian Ocean Territory”. The UK government simultaneously reminded Mauritius that it would take “forcible detachment” should Mauritius disagree. The two colonizing states also secretly “dealt with” the resettlement of the “Chagossian” -- the indigenous population of the Chagos Archipelago, through a bilateral agreement, excluding both Mauritius and the UN.

By making such an analogy, Poling is both right and wrong. He is wrong as China has never appeared as a colonizer. Unlike acting as a regional hegemony, China has been promoting the South China Sea disputes to be resolved peacefully and equally among regional states. He is right, nonetheless, for his concern about the revival of colonialism in the South China Sea. France, the former colonizer in the Asia-Pacific region, now plans to deploy its aircraft carrier in the Pacific. Japan, with a notorious history of illegal occupation and colonization, now frequently allies with “like-minded states”.

The Second Confusion: The Philippines Has “Gained” International Support

Poling also advises the Philippines to “learn from” Mauritius to utilize its “international” support. In specific, he suggests the Philippines turn to the UN General Assembly for a resolution requiring an advisory opinion in the International Court of Justice. His optimistic assessment, however, is deceptive and untenable.

Disregarding the actual support that the Philippines may receive in the UN General Assembly, a simple fact is that Poling’s suggestion contradicts the UN Charter. In the commentary, Poling does not specify the legal question that he thinks the advisory opinion shall deal with. Rather, he roughly refers to the UN Charter and the Convention on the International Regulations for Preventing Collisions at the Sea. A possible estimation is that Poling suggests the Philippines challenge the Chinese law enforcement activities in the South China Sea. It is superfluous to discuss the latter as the COLREGs do not apply to law enforcement. It, therefore, remains the UN Charter for discussion.

According to the record, it is likely for the Philippines to claim that Chinese law enforcement activities threaten international peace and security. If this were the legal issue that the Philippines hope to bring to the General Assembly, it must be reminded that the UN Charter is designed to prevent the General Assembly from handling issues as such, as the maintenance of international peace and security is the function exclusive to the Security Council pursuant to Article 24 of the Charter. Should the General Assembly pass such a resolution, the Court is unlikely to find its jurisdiction established. The precedent may be found in the Nuclear Weapon advisory opinion where the Court found the World Health Organization had exceeded its function by asking the Court to issue an advisory opinion on the legality of the use of nuclear weapons.

Now, the expanding military alliance of the Western powers has pushed the peace and security of the South China Sea to the edge of a cliff. Voices urging NATO to enter the South China Sea are increasing, and the military cooperation between the coastal states of the South China Sea and NATO states is also intensified. It can be anticipated if NATO manages to build its presence in the region, the tragedy and warfare NATO has created elsewhere will be replicated in the South China Sea.

(Author: Jiahao Mu, Assistant Research Fellow at Huayang Center for Maritime Cooperation and Ocean Governance)