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China's Ascent has Asia on Edge. Could International Law Help?

June 2, 2014 Topic: International Law Region: China Blog Brand: The Buzz

China's Ascent has Asia on Edge. Could International Law Help?

In his keynote address at this year’s Shangri-La Dialogue , Japanese Prime Minister Shinzo Abe urged China’s neighbors to challenge its maritime claims by invoking international law.  He declared early on in his speech and again near the end: “Japan for the rule of law.  Asia for the rule of law.  And the rule of law for all of us.”  Abe called for a “rule of law at sea” that is grounded in three principles: the countries of the Asia-Pacific region, he stated, should “make and clarify their claims based on international law,” “not use force or coercion in trying to drive their claims,” and “seek to settle disputes by peaceful means.”

U.S. Secretary of Defense Chuck Hagel was similarly vocal about the importance of international law in his speech at Shangri-La.  A crucial test for the Asia-Pacific, he said, “is whether nations will choose to resolve disputes through diplomacy and well-established international rules and norms, or through intimidation and coercion.”  Hagel promised that the U.S. would “support efforts by any nation to lower tensions and peacefully resolve disputes in accordance with international law.”

Abe and Hagel’s remarks come on the heels of the Philippines’s decision to challenge China’s maritime claims by submitting a case to a five-member tribunal operating under the auspices of the United Nations Convention on the Law of the Sea (UNCLOS).  Vietnam is reportedly mulling the possibility of joining them, having “exhausted all dialogue channels” with China .  And in February, for the first time, the U.S. officially rejected the legality of China’s self-declared “nine-dash line.”

This growing emphasis on international law by the U.S. and its allies reflects an emerging reality: along current trend lines, China will increasingly be able to settle the region’s maritime disputes on its preferred terms.  Given the pace at which its military power and economic pull are growing, China has little need to take rash, sweeping actions that would bring about such a resolution in the short term.  It can take small actions that build upon each other and ultimately change the status quo (paraphrasing an insight in Hegel’s Science of Logic , Marx observed that “merely quantitative differences beyond a certain point pass into qualitative changes”).  Abe noted China’s “[m]ovement to consolidate changes to the status quo by aggregating one fait accompli after another.”  The disunity among China’s neighbors also buys it time.  Historical antagonism continues to drive a wedge between Japan and South Korea, and as the Financial Times ’s David Pilling observed recently, ASEAN “is divided between countries that have disputes with China—the Philippines, Indonesia, and Vietnam among them—and ones that do not, including Thailand and Cambodia.”

International law is the one relevant theater in which the playing field would appear to favor China’s neighbors.  Leaving aside the likelihood that it will take several years for the Philippines’s case to make its way through UNCLOS bureaucracy—a major consideration to neglect, of course—consider its potential verdicts.  If the tribunal finds the nine-dash line to be legal, it would effectively eliminate the possibility of a successful nonviolent challenge to China’s maritime claims.  In the more likely case that it finds that boundary to be partly or entirely illegal, there are at least three ways in which China could respond:

- Accept the ruling and adopt less expansive maritime claims:   While this possibility may well be far-fetched, the lawyer whom the Philippines have retained cautious against dismissing it outright; Paul Reichler, a partner at Foley Hoag, told the Economist in late May that “[d]ecisions, judgments, and awards by international courts and tribunals are complied with in more than 95% of the cases, including by big powers such as the United States.”

- Ignore the ruling: This possibility seems most likely.  Eric Posner, a professor at the University of Chicago Law School, concludes that “China has refused to participate in the arbitration and will disregard any judgment against it.  And that will be that.  The judges can no more compel China to yield the Spratlys or Paracels than they could detach those islands from the seabed and tow them away.”

- Commit to taking the ruling under consideration:  China would effectively be ignoring it without rejecting it.  The trouble with this intermediate course (from China’s perspective) is that it would still give China’s neighbors ample legal and diplomatic ammunition; they would likely frame it as an implicit concession by China that the nine-dash line is illegal.

It would be wrong, however, to place the onus of upholding international law solely on China.  Jerome Cohen, a professor at the New York University School of Law, contends that Vietnam “should make plain its willingness” to “submit to the ICJ [International Court of Justice] its territorial claims over the Spratlys, including those islands and other features that it currently occupies.”  He also notes, approvingly, that the Abe government has not repudiated former Foreign Minister Koichiro Genba’s proposal for China to “test its claim to the Senkaku/Diaoyu Islands by launching a suit against Japan before the ICJ” (Cohen’s words, not Genba’s).  Japan would enhance its credibility as a disputant if it officially advocated Genba’s idea.  Indeed, all six neighbors of China that are parties to the Asia-Pacific’s maritime disputes—Brunei, Japan, Malaysia, the Philippines, Taiwan, and Vietnam—should declare their willingness to have their claims evaluated by an international tribunal.

While the U.S. may not be party to those disputes, its pushback against China would be more powerful if it ratified the Law of the Sea Treaty.  The Wall Street Journal ’s Andrew Browne explains that:

"Increasingly, America’s absence from the treaty undermines its arguments to China about the supremacy of international law….From the U.S. perspective, the legal counter to China under the treaty is all the more important given the alternatives.  Confronting China with force is an option fraught with incalculable risks.  War between China and the U.S., even a limited one, would be catastrophic….The Law of the Sea isn’t the only answer to the region’s increasingly risky maritime disputes.  But with a lack of better ones, the apparent contradiction in the U.S. position weakens the power of its argument."

 

 

It is tempting to dismiss such discussion of international law.  The sixth-century Scythian philosopher Anacharsis lamented that laws “are no better than spiders’ webs, which the strong will break through at pleasure.  So like a fly the poor offender dies, but like the wasp the rich escapes and flies.”  While appeals to international law may not change what increasingly appears to be an inevitable outcome—Chinese primacy in the South China Sea—they could change the way in which that outcome is reached and limit the benefits that China accrues from it.  The Filipino submission to UNCLOS could increase pressure on the Chinese government to articulate a coherent explanation of how it interprets the nine-dash line, something that it has yet to provide. Taylor Fravel, one of the foremost scholars of China’s maritime disputes, notes that

"China has maintained a curious silence on the meaning of the line.  China has never stated what the line depicts, either positively or negatively.  The line could represent a claim to sovereignty over the enclosed land features or it could be much more expansive and represent a claim to an EEZ [exclusive economic zone] or historic rights (both of which would be inconsistent with UNCLOS)."