The Buzz

The South China Sea Crisis: Part of a Much Bigger Problem

“All of the various claimants that have disputes with China in the South China Sea should appeal collectively to any and all international bodies that could possibly hear their claims. Only together can they hope to get Beijing to halt its aggressive actions...While even this might not stop China’s moves to enforces its claims in the area around its nine or ten-dash line around the South China Sea, if shaming Beijing is the goal, and considering the stakes (not just who controls sea lanes worth trillions of dollars, but the very idea of the global commons, space that no one owns), this might be just the best way to do it.”

In response to my post, Julian Ku, a Professor of Law at Hofstra University, begs to differ for two reasons:

1) China has opted out of any “compulsory” system of international dispute resolution that would rule on its territorial claims in the South China Sea (or anywhere, for that matter).  This “opt-out” is perfectly legal and may very well prevent the Philippines from even making their full case to the UNCLOS arbitration tribunal.  There are no other legal institutions that have jurisdiction.  So the only way “lawfare” can work here is if China consents to arbitration. But if Kazianis is right that this is a strategy by China’s neighbors to block its expansion, then why would China ever agree to arbitration?

2) Even if compulsory jurisdiction were somehow found in one of these international bodies, there is very little chance that China would feel compelled to comply with any negative ruling.  This is not a China-specific problem, but rather a problem almost every country faces when considering arbitration over territorial disputes.  The effectiveness of tribunals in these contexts is highly limited since they depend for enforcement on the individual state-parties.  This is why voluntary arbitration tends to work better than compulsory arbitration in these kinds of territorial disputes.  The U.S. and Canada, for example, have managed to settle (most of) their often contentious land and maritime borders through a combination of non-arbitral commissions, and then special bilateral arbitrations.  In the famous “Gulf of Maine” case, the U.S. Senate actually approved a special treaty with Canada to send a maritime dispute to a special chamber of the ICJ.  Although clunky, this model is far more likely to succeed in getting state compliance.

I thank Professor Ku for his smart analysis and contribution to this debate. However, I would argue that Manila or Hanoi don’t need to win a lawsuit against Beijing or even get China to show up to a hearing. China is using means short of conflict such as non-naval maritime assets, “mapfare,” oil rigs and other non-kinetic means to carve out its claims in the South China Sea--essentially winning the perception game over time and wearing down the will of others. Claimants in the South China Sea could use lawsuits in the same way. They need to fight China’s claims in the court of public opinion, using a shaming strategy to get opinion on their side--to enact some measure of costs for China’s actions. Washington could then support those who have filed the claims to seek a solution to the crisis through legal frameworks. If Beijing declines to participate in the process, as they have already in the case of the Philippines, or declining multiple times with possible additional filed claims, this would set Beijing up to lose the perception battle.

While the above strategy is clearly imperfect, it does give the United States and its allies in Asia at least one set of tools to increase the costs of China’s provocative actions. Even if this was to work and Beijing backed off its claims, America along with its allies would still have many more issues with China hampering overall ties. In many respects, the challenge America faces along with Asia as a whole is as old as history itself: the concept of a rising power bent on modifying the international system for its own wants and needs--a long term problem no court or shaming strategy can fix.

Harry J. Kazianis serves as Managing Editor of the National Interest. You can follow him on Twitter: @Grecianformula.

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