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The Fallout from the South China Sea Ruling

Tags: South China Sea , United Nations , Southeast Asia , Territorial Dispute , China

Saunders, Paul J.

July 19, 2016

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The recent ruling by the Permanent Court of Arbitration rejecting China’s historic claims to much of the South China Sea is not likely to soften Beijing’s position. In fact, cautions Paul Saunders, it could make conflicts more likely rather than less, forcing the United States and its regional allies to think carefully about what they are prepared to do in pursuing their options.

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The conventional wisdom among many concerned by China’s territorial claims in the South China Sea is that the recent ruling by the Permanent Court of Arbitration in The Hague is a major defeat for China and an important step forward. In fact, however, the ruling may have only a limited impact on the realities of Asia’s maritime territorial disputes—and could ultimately make conflicts more likely rather than less.

Question of Legitimacy

One key goal of the United Nations Convention on the Law of the Sea (UNCLOS) has been to facilitate the peaceful resolution of disputes through arbitration or other legal means. In theory, the availability of these mechanisms would allow parties to UNCLOS, including China, to avoid dangerous confrontations over their competing territorial claims. In practice, however, China has explicitly rejected the convention’s dispute resolution procedures since 2006 and, indeed, refused to take part in the proceedings. This makes it much more difficult to reach peaceful and mutually accepted solutions.

China appears to prefer peaceful outcomes that may not be mutually accepted, ensuring peace primarily through intimidation. Those on the other end of China’s territorial claims probably hope for the same result—though obviously with the results in their favor rather than Beijing’s. The underlying problem here is that no one has yet identified solutions that satisfy everyone. It is quite challenging to resolve disputes peacefully and sustainably when there is no point at which the parties’ self-defined interests intersect.

Some hope that the court’s ruling will undermine the “legitimacy” of China’s claims, since an internationally constituted tribunal has largely invalidated them. The flaw in this line of thinking is that legitimacy is overwhelmingly in the eye of the beholder. Chinese officials—and the Chinese public—are likely to see the court’s decision as illegitimate and, accordingly, will not lose any enthusiasm for their government’s claims vis-à-vis the Philippines or other countries. If anything, they will become more determined.

Conversely, leaders and people in the Philippines, and probably in some other countries engaged in similar disputes, will accept the decision as a legitimate one and hold more strongly to their own claims. From this perspective, the ruling will serve primarily to harden positions rather than to facilitate a peaceful solution to this dispute or others.

With a few exceptions (most notably the United States), most other governments will strive to avoid becoming involved, so that they can continue to pursue key national objectives in their bilateral relations with China and those on the receiving ends of its many maritime claims. Whether or not they view China’s claims as “legitimate” will be secondary to national interests and priorities.

Taking Sides without Taking Sides

A third problem surrounds the enforcement of the tribunal’s decision. Many commentators have already acknowledged that UNCLOS does not have an effective enforcement mechanism. Like all UN-sponsored agreements, including the treaty that established the UN Security Council, effective implementation is entirely dependent upon its members. Few governments (including even the Philippines) will likely seek to impose significant costs on China if it does not comply with the ruling.

The most significant possible exception, again, is the United States. Some in the Philippines and in other countries contesting Chinese maritime claims may hope that Washington will become the “enforcement mechanism” in Asia’s territorial disputes. Indeed, they may see this as the most likely path to a peaceful but favorable resolution of their disputes with China. Some in America may seek this role as well.

With this in mind, it is notable that State Department press spokesperson John Kirby has already stated, “the United States expresses its hope and expectation that both parties will comply with their obligations.” [www.state.gov/md259587.htm] The court’s verdict certainly provides Washington with an opportunity to attempt to take sides without taking sides—often attractive to diplomats—by supporting the ruling without supporting the Philippines. Kirby’s statement tried to do just this, saying, “[we] have no comment on the merits of the case.”

Unfortunately, the pseudo-subtlety of this diplomatic posture is unlikely to be sustainable. Few in Beijing will believe it and far more are likely to see it as rather bold hypocrisy from a government that has refused to ratify UNCLOS, in no small part because a number of Americans value their sense of national sovereignty more highly than the convention’s potential benefits. China has in essence taken a similar position, though its legal ground seems somewhat compromised since Beijing ratified UNCLOS and only a decade later rejected its dispute resolution procedures.

The fact that China tried to have it both ways—benefitting from UNCLOS without accepting its costs—and then lost should be a reminder for those who want the United States to try something fundamentally similar by enforcing UNCLOS arbitration rulings without being a party to the agreement and by backing rulings without backing claims.

There are three possible outcomes to this approach. The first, which seems to be the most unlikely, is that the United States, the Philippines, and other interested parties will succeed in peacefully pressuring China into acceding to the ruling and largely abandoning its claims in the case. The second and probably most likely is that peaceful pressure will fail and that neither Washington nor others will be willing to use nonpeaceful pressure. This outcome would undermine UNCLOS by demonstrating that its dispute resolution procedures do not work. The third is that Washington or others will decide in dealing with this case (or perhaps a future one) that the threat or use of force is essential to upholding a rules-based international system. But could China’s leaders afford to back down?

Before proceeding much further, US officials and America’s many allies and partners in Asia should think carefully about what they are prepared to do in pursuing each of these paths and when and how they could step off an unsuccessful path at the least cost. This kind of thinking is usually a better guide to policy than momentum and reflexes.

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