Int’l law is only as strong as sovereign states are willing to submit to it

Rodion Ebbighausen, managing editor of Deutsche Welle’ Asia Department, granted VOV reporter Pham Trang an interview at a recent teleconference hosted by University of Hamburg, making an in-depth analysis of the situation in the region.

Reporter: Dr. Rodion Ebbighausen, while the whole world is struggling to cope with the COVID-19 pandemic, the situation in the South China Sea in 2020 and the first half of 2021 remains complicated. How could you assess the situation in the region and give a forecast in the coming time?

Dr. Ebbighausen: The situation in the South China Sea will remain complicated and tense for the foreseeable future. A major reason for this is the rise of ideological political thinking between the People's Republic of China and the so-called West, especially the United States.

President Xi Jinping, in his speech at the celebration of the 100th anniversary of the Chinese Communist Party, left no doubt that China will not let anyone bully, oppress or enslave it.

At the recent NATO summit as part of US president Joe Biden's visit to Europe, NATO Secretary General Jens Stoltenberg said, "China does not share our values."

In March 2019, the EU called China a "systemic rival" for the first time.

Globally, there is evidence of a rise in ideological camp thinking and a decline in the willingness to engage in pragmatic politics.

This is also affecting Southeast Asia, the Association of Southeast Asian Nations (ASEAN), and the conflict in the South China Sea as well.

The scope for a pragmatic solution to the conflict in the South China Sea has thus become smaller rather than larger. In view of the charged political situation China will want to demonstrate strength and show little willingness to compromise in the South China Sea.

Reporter: Five years have elapsed since the Permanent Court of Arbitration (PCA) ruled the case Philippines versus China in the South China Sea, but China has constantly rejected the ruling and taken actions to complicate the situation in the waters. So what is the role of the PCA’s ruling, you think? In your opinion, what measures should the international community take to prevent China from repeating such actions?

Dr. Ebbighausen: The award was an important signal. But international law is only as strong as sovereign states are willing to submit to it. Regrettably, the arbitral award was not only ignored by China, but also undermined at times by the Philippines, which won a near-total victory at The Hague. 

Great powers such as China and the United States respect international law only when it serves their interests. Middle powers like Germany and Vietnam and small powers, in turn, have nothing but international law to defend themselves against arbitrary actions by great powers.

Since major powers cannot ultimately be forced to comply with international law, the strategy can only be to drive up the price of violations.

To drive up the price with respect to the South China Sea, the validity of the arbitral award must be emphasized at every opportunity. In international law a steady drop wears away the stone.

Small and middle powers need to cooperate more. In this respect, ASEAN is the right answer for Southeast Asia, just as the European Union is for Europe.

ASEAN and EU must insist that their member states respect international law in order to strengthen it. Only in this way will the associations be credible in defending international law against notorious ignorance on the part of the great powers.

In short, there is no magic formula or trick by which international law can be enforced by the international community (whoever that may ultimately be). International law and UNCLOS will only prevail if more and more states voluntarily submit to it. At a certain point, the binding force of international law will become so great that even China and the USA will not be able to ignore it without considerable disadvantages.

Reporter: The European Union has recently issued a cooperation strategy in the Indo-Pacific. Previously, the German government also adopted its own strategy on the Indo-Pacific. So how can Europe and Germany in particular make specific contributions to help resolve the South China Sea conflict?

Dr. Ebbighausen: The European Union's Indo-Pacific Strategy is so far only available in a first version. A more comprehensive version is to follow in September 2021.

EU member states, including Germany, France and the Netherlands, have also each presented their own Indo-Pacific strategy.

All approaches emphasize that international law and the 1982 United Nations Convention on the Law of the Sea (UNCLOS) can be the only framework for resolving conflicts in the South China Sea.

Germany's defense minister Kramp-Karrenbauer recently reminded her Chinese counterpart Wei Fenghe of the importance of upholding the 2016 arbitration decision.

The tone gets tougher but the EU and the aforementioned member states see themselves primarily as dialogue or cooperation partners of all parties. This explicitly includes the People's Republic of China.

In a certain sense, the EU formulates a position beyond the great powers of the U.S. and China, although there is little doubt that the EU is closer to the US than China.

The ASEAN is seen as the natural partner in the Indo-Pacific for this third position. The EU is looking for partners who refuse the competitive logic of the U.S. and China and instead rely on multilateral cooperation and international law.

However, deeper cooperation would require greater respect for international law within ASEAN as well, for example with regard to the dire situation in Myanmar, the different view on human rights and far-reaching differences regarding freedom of the press and freedom of expression.

International law exists only as a whole. Those who want UNCLOS cannot ignore the Universal Declaration of Human Rights and vice versa.

In the short term, the EU's Indo-Pacific strategy will have little tangible impact on the conflict in the South China Sea.

In the long term, however, if ASEAN and the EU are willing to strengthen international law through compliance and application, this approach can overcome the competitive logic reminiscent of the Cold War.