The New Cold War
America, China, and the Echoes of History
On July 12, in a long-awaited verdict, the Permanent Court of Arbitration in The Hague ruled unanimously in favor of the Philippines, which had submitted a 15-point case to the tribunal in January 2013 opposing several of China’s territorial claims in the South China Sea. The tribunal agreed with the Philippines that “China had violated the Philippines’s sovereign rights” by building artificial islands and restricting the movements of Filipino petroleum explorers and fishermen within the Philippine’s exclusive economic zone, among other infractions. Most importantly, the tribunal concluded that “there [is] no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line,’” a boundary China created by removing two dashes, after a dispute with Vietnam, from the “11-dash line” that first appeared in a 1947 document published by the Chinese nationalist government. It’s an important boundary since most estimates suggest that it envelops 85 to 90 percent of the South China Sea.
Even with international law on the Philippine’s side, China will most likely continue exerting diplomatic and economic pressure on its southern neighbor. The Chinese Ministry of Foreign Affairs responded immediately to the tribunal’s ruling by declaring it “null and void” since it carries “no binding force.” The ministry added that “China’s territorial sovereignty and maritime rights and interests in the South China Sea shall under no circumstances be affected.” Perhaps Dai Bingguo, a veteran Chinese diplomat who retired as state councilor in early 2013, said it best when he told a gathering last week that the ruling would amount to “nothing more than a piece of paper.” China’s behavior during the tribunal’s proceedings, in which it refused to participate, is a likely signal of what’s to come. It has reclaimed over 3,000 acres, or four square miles, of the South China Sea since 2014, and has recently threatened to withdraw from the United Nations Convention on the Law of the Sea (UNCLOS).
In other words, China has seemed unconcerned with the ruling and the reputational damage it could inflict. If it were not worried, however, why has it attempted so vigorously to demonstrate that its activities in the South China Sea comply with international law? In recent years, prominent Chinese scholars have made great efforts to justify the nine-dash line’s legality under UNCLOS. In January 2014, Judge Zhiguo Gao, a member of the International Tribunal for the Law of the Sea, and Bing Bing Jia, a professor at Tsinghua University, penned an essay for the American Journal of International Law concluding that the demarcation did not “contradict the obligations undertaken by China under UNCLOS.” In December 2014, the Chinese Foreign Ministry published a position paper arguing that The Hague did not have jurisdiction over the Philippines’s case. Last April, Chinese Ambassador to the United States Cui Tiankai observed that China was “one of the first countries to join and ratify UNCLOS, and we take our international obligations very seriously.” Ironically, and tellingly, China has framed its absence from the tribunal’s proceedings as evidence that it is, in fact, protecting “the sanctity” of UNCLOS from trivial disputes that are not germane to its core purpose. (What its purpose is, then, Beijing has not made clear.)
Perhaps China is worried. On the other hand, its focus on upholding UNCLOS’s “sanctity” serves to prove a point: that Beijing follows the law. China is well aware that the United States—which has unsurprisingly supported the arbitration from the outset and endorses the tribunal’s decision—is not a party to UNCLOS, the very centerpiece of maritime law that Washington berates Beijing for violating. The United States’ failure to ratify UNCLOS has not only prevented it from securing, in spite of its size, an exclusive economic zone larger than that of any other country, but also allowed China to deflect U.S. criticism and highlight Washington’s hypocrisy. Shen Yamei, an associate research fellow with the China Institute of International Studies, argues that “[w]hile the U.S. behaves like a state party to UNCLOS and argumentatively invokes UNCLOS to criticize China, it forgets that it has not ratified UNCLOS itself.” The Financial Times has properly urged “Washington to immediately start the process of ratifying UNCLOS….Its continued refusal to do so allows Beijing to quite easily turn the tables and portray Washington as the real bully thumbing its nose at international laws.”
There is plenty of domestic support for UNCLOS, as well. The Commander of the U.S. Pacific Command, Harry Harris, warns that the United States’s “moral standing is affected by the fact that [it is] not a signatory to UNCLOS.” The Chairman of the Joint Chiefs of Staff, General Joseph Dunford, concludes that the United States “undermine[s] [its] leverage by not signing up to the same rulebook which [it is] asking other countries to accept.” Secretary of State John Kerry, former Secretary of State Hillary Clinton, former Secretary of Defense Leon Panetta, and former Chairman of the Joint Chiefs of Staff Martin Dempsey have also offered robust endorsements of UNCLOS. In an influential May 2012 article, five former Republican Secretaries of State—Henry Kissinger, George Shultz, James Baker, Colin Powell, and Condoleezza Rice—lamented that “continuing delay of U.S. accession to the convention compromises our nation’s authority to exercise our sovereign interest, jeopardizes our national and economic security, and limits our leadership role in international ocean policy.” There are many other pronouncements in this vein. Still, a vocal minority in Congress has been able to scuttle ratification on account of a misguided presumption that accession to UNCLOS would constrain U.S. sovereignty.
The international community more generally has set a bad precedent for treating rulings as mere “pieces of paper” rather than law. The Harvard Kennedy School’s Graham Allison notes that “no permanent member of the UN Security Council has ever complied with a ruling by the [Permanent Court of Arbitration] on an issue involving the Law of the Sea.” In fact, each of the Council’s five permanent members has at one time or another turned a blind eye toward international rulings that it considers damaging to either its sovereignty or security interests. In September 2013, for example, Russia detained a Dutch Greenpeace vessel, Arctic Sunrise, as well as the 30 crew members, after two Greenpeace activists attempted to scale a Gazprom oil rig within Russia’s exclusive economic zone. In November, the tribunal ordered Russia to release the vessel and the crew, which was conditioned upon the Dutch government’s posting of a $4 million bond. Russia ignored the ruling. In March 2015, the tribunal ruled that the United Kingdom had violated UNCLOS by unilaterally creating a marine protected area within the Chagos Islands without the compliance of its former colony, Mauritius, and ordered the two countries to renegotiate the area. The United Kingdom ignored the ruling.
The tribunal’s ruling in favor of the Philippines is likely to produce a drama that plays out over years, even decades. The United States’ long-term efforts to manage China’s resurgence and shape a more rules-based Asian–Pacific order will be more persuasive if Washington overcomes its imprudent resistance to ratifying UNCLOS. The U.S. Naval War College’s James Kraska notes that “the United States already scrupulously follows the rules” contained in the treaty. Still, ratifying it would enhance U.S. credibility by sending a message that the world’s preeminent power submits itself to international law. It would give Washington a much firmer legal and moral footing to criticize China’s conduct in the South China Sea. It could even encourage Vietnam and Malaysia to submit cases of their own to The Hague.
Australia National University scholar Feng Zhang explains that there is an intense battle underway between “realists,” “hardliners,” and “moderates” within the Chinese foreign-policy establishment. The last group fears that if China continues to define the nine-dash line as a “territorial demarcation line,” it will make the country “an adversary of most Southeast Asian states as well as the United States” and render China vulnerable to “strategic overreach.” With the tribunal’s decision, the United States and its regional allies have a compelling opportunity to strengthen the voice of the moderates.