The South China Sea is a strategic body of water bordering Brunei Darussalam, Malaysia, Indonesia, the Philippines, Singapore, Thailand, Vietnam, and China. As one of the busiest trade routes in the world and home to a wealth of marine and mineral resources, the South China Sea holds great economic and geostrategic importance. Countries have wrangled over territory in the South China Sea for centuries, but tension has grown in recent years. In particular, China’s sweeping claims that violate the United Nations Convention on the Law of the Sea (UNCLOS), which include sovereignty claims over land parcels and their adjacent waters, have angered competing claimants like Vietnam, the Philippines, Taiwan, Malaysia, and Brunei (BBC, 2024).
The maritime disputes in the South China Sea are far from being localized conflicts; rather, they hold both regional and global implications, impacting the delicate balance of power and international law. As stated before, many countries are affected by the act of China, but other than the Philippines, there are no major legal actions against China. Why don’t countries take legal actions regarding China’s violation of UNCLOS in the South China Sea?
The United Nations Convention on the Law of the Sea (UNCLOS) is an international agreement that establishes guidelines for businesses, the environment, and the management of marine natural resources (IMO, 2012). This agreement plays an important role in the way China is claiming territories. We have to acknowledge the role of UNCLOS in assisting to provide governance arrangements for the maritime domain in certain circumstances and note that China intends to work constructively over the coming decade to help refine it (Shi, 2015). However, a Japanese writer named Atsuko Kanehara (2018) argues that China’s sovereignty in the South China Sea is not a subject that UNCLOS should be adjudicating because China’s claim is based on historic rights that are defined under a regime independent of UNCLOS. Moreover, it contends that the continued insistence of some countries in attempting to use UNCLOS to frame the debate about China’s claim in the South China Sea is not only incorrect but is also increasing the risk of regional instability. In 2013, the Philippines, under UNCLOS, initiated an arbitral procedure against China. In this respect, the Permanent Court of Arbitration (PCA), on July 12, 2016, issued its award, which was with the Philippines, declaring that significant parts of China’s claims, its nine-dash line and new land reclamation activities, were illegal. Seeing many perspectives regarding this heated state of the South China Sea, there’s a lack of information given as to the reason why other countries impacted by China’s action did not take legal action against China; thus, the research question of this writing was birthed.
Despite many theories in the International Relations realm, the theory of neorealism will come to play in this writing. Neorealism is a theory that emphasizes the role of power politics in international relations, which sees competition and conflict as enduring features and sees limited potential for cooperation (Lobell, 2017). Neorealism was a purely systemic theory, one that focused on the characteristics of the international system structure, rather than the nature of individuals or states. Rather, it posited a minimalist concern with survival in an anarchic setting as the only necessary condition. Through the neorealism theory, this writing will discuss in depth the main reasons how neorealism theory can navigate the tension in South China Sea regarding China’s violation of UNCLOS.
Several countries in the South China Sea, both individually and collectively, pointed out China’s serious violations of UNCLOS in this region. Vietnam has condemned China’s interference in its oil and gas exploration activities as continually claiming territorial jurisdiction over areas belonging to Vietnam. This also includes those cases where the Chinese Coast Guards patrolled Vietnamese territories without permission, in blatant disregard for the provisions under UNCLOS that ensure marine preservation and prevent damage to fragile ecosystems. ASEAN members have also collectively voiced their unease concerning unilateral acts by China, calling for compliance with international law, in addition to promoting a rules-based maritime order. Though the individual reactions may vary because some have more or less engagement with China, the sentiment carries the shared frustration of blatant disregard of UNCLOS by China and the destabilization of the region as a result.
A researcher named Ky Nguyen (2018) mentioned that the international system of neorealism is anarchic, meaning no overarching authority enforces the rules and judges their disputes. In this kind of system, states are dependent upon their capabilities to secure themselves and their interest. He added that the countries surrounding the South China Sea do believe that taking legal action against a powerful state would lead to military and economic retaliation. Therefore, they tend towards self-help measures and remain hostile to legal actions as well because they fear that legal steps may provoke a more crushing retaliatory response from China that would cast a bad effect on their security situation. He added that neorealists contend that states are more concerned about relative gains—that is, their own power and security compared to others—than with absolute gains. This mindset discourages cooperation if it might enhance the power of a rival. It can thus be ruled out in the South China Sea by any nation that sees it as a tool to provoke China to force it into aggressive actions against them. Instead, such nations might choose to employ a status quo that offers a situation of less conflict while still safeguarding their interests.
Increased military ability and an assertive foreign policy have brought China to a hegemonic position in the region of Southeast Asia (Tokuchi, 2022). Knowing this, neorealists would suggest that weaker states will usually seek to balance against a dominant power, rather than confront such a power. Countries may prefer to negotiate through diplomatic means and soft bargaining through multilateral discussions within ASEAN rather than push through with legal action perceived to be confrontational. In doing so, the countries aim at balancing to avoid head-on conflict with China while still putting across their claims. The neorealist view also highlights the importance of alliances and strategic calculations in international relations. Smaller countries can decide that taking legal action could further isolate them from potential allies or even destabilize regional cooperation. They may prefer to negotiate informally or to seek support from greater powers, such as the United States, that exercise freedom of navigation operations but themselves do not claim territorial rights on certain regions.
Lastly, the reason countries hesitate to take legal action against China roots from concerns about security, relative gains, power dynamics, and strategic considerations regarding alliances; these concerns make countries prioritize stability and a sense of self-preservation over potentially confrontational legal battles. On top of it, the ambiguous interpretation of UNCLOS, added to China’s historical claims, makes legal action not so clear-cut. In the final analysis, such dynamics underline a strategic choice of diplomacy over legal action among smaller nations in navigating the complex geopolitical landscape of the region.
