The Folly of a “Rules-Based International Order” in the South China Sea: The Case of Spratly Islands as an Offshore Archipelago

The arbitral tribunal in the South China Sea Arbitration declared that neither a continental state like China or Vietnam nor archipelagic state like the Philippines has a right under conventional or customary international law to enclose the Spratly Islands with straight or archipelagic baselines, as though it were an offshore archipelago. This ruling indirectly altered the territorial dispute in the South China Sea from one over the Spratly Islands as an offshore archipelago to one over a scattering of rocks with pockets of territorial sea. China, Philippines and Vietnam have disregarded this ruling by issuing legislations and regulations and engaging in law enforcement activities that maintain the Spratly Islands as an offshore archipelago. From their practices an arbitrary and exclusionary rules-based scheme is taking shape, normalizing the enclosure of the Spratly Islands as an offshore archipelago and the treatment of the features, waters, seabed and airspace within it as territory, thereby further restricting high seas freedoms. This article contributes to the critical understanding of the dichotomy that scholars like John Duggard, Shirley Scott, Stefan Talmon and Natalie Klein drew between a rules-based international order vis-a-vis an international law-based international order.