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The Hague’s Permanent Court of Arbitration ruled this morning that China has no legal basis to claim historic rights to the waters within its so-called “nine-dash line.” Furthermore, the court stated that China’s island construction and coast guard activities have violated the Philippines’ sovereign rights in its exclusive economic zone. Here are a few quick thoughts and comments on the award:
America and UN tribunals
Let’s get this out of the way. China will decry the fact that America is cheering on a decision of a tribunal convened under the auspices of the UN Convention on the Law of the Sea, a treaty that Washington has not ratified.
It is true that Americans have at best an uneasy relationship with international law — after all, the country was born demanding and jealously guarding its independence in all state affairs. Strategic autonomy is a crucial part of American “strategic culture.”
These inclinations, however, are tempered by Washington’s commitment to the “liberal international order,” a key feature of which is the openness of the global maritime commons that are protected by the US Navy and backed up by centuries of maritime law and custom. The US inherited the great British tradition of “good order at sea,” and has helped develop maritime practices and customs consistent with that tradition.
The US inherited the great British tradition of “good order at sea,” and has helped develop maritime practices and customs consistent with that tradition.
Generally the US has behaved in ways consistent with customary international law, though it has been wary of acceding to multilateral treaties such as UNCLOS. The legitimate concern is that enemies and rivals will achieve through politics what they could not through force and diplomacy – restricting American actions that they do not like.
The US will continue to behave in this manner precisely because without freedom of action it cannot continue to be the prime provider of international security. US friends have long-lived (sometimes unhappily) with this dilemma, understanding that in order for Washington to play its unique role in international affairs it simply must not sacrifice too much independence.
Now China has ramped-up its anti-arbitration propaganda, including pointing out US ambivalence about international tribunals. Unfortunately for China, this line of argument will fall mostly on deaf ears. America is well known for its reverence for the law, its attempts to act consistently with it, and its general attempts to inject justice into its foreign policy alongside national interests. China is not known for any of these things. A country that is undertaking its most severe human rights crackdown in decades will simply not convince anyone of import that ignoring a UN ruling is an exception to its otherwise lawful practices. The US is a rule-of-law country; China is not.
So yes, the US is in a somewhat awkward position of cheering for a favorable UN ruling, even as it does not accede to the UN tribunal that made the ruling. While China continues to delegitimize the tribunal’s findings, the US should engage in a serious public diplomacy campaign highlighting its own reverence for law compared with China’s general disdain for it.
But the bottom line on any international law is that it is “enforced” through state custom alone. The hard work begins now. The US must step up its efforts to conduct itself in accordance with the ruling and exercise all navigational rights that law and custom permit.
The core issue is Beijing’s territorial claim to the South China Sea
In 2009, Beijing submitted a “nine-dash line” map to the UN, encompassing 90% of the South China Sea as its maritime claim. UNCLOS and other maritime laws grant greater maritime rights to habitable islands than to rocks and reefs, therefore China is trying to create such islands, and in doing so, claim both 12 nautical miles (nm) of territorial waters around each feature, as well as an Exclusive Economic Zone (EEZ) of 200 nm from each. Chinese forces occupy features in the Paracel islands and continue to “reclaim” land throughout both the Paracels and Spratlys. As Dean Cheng and Steve Groves write:
Each coral reef and atoll controlled by China is an additional land feature from which China may make excessive claims and that may serve as a justification to disrupt lawful US military activities, including survey and intelligence operations. It is contrary to US interests for China to gain control over additional SCS land features.
In essence, China tries to make its “nine-dash line” claim operable by creating a set of land features. Today the tribunal denied that any Chinese occupied feature in the Spratlys is a natural island entitled to a 200 mile exclusive economic zone. Therefore, China cannot legally operationalize the “nine-dash line.”
The US response
The ruling should be seen as an opportunity for the US to reinforce the benefits of being a US ally.
The question now is not will China abide by law and custom (Hint: It won’t – China will continue to push its unlawful claims), but does the US have the will to defend the order it helped create?
Washington must go beyond passive statements of support for the ruling by demonstrating resolve to make the decision operable as a matter of policy and practice. The US should engage in a serious public diplomacy campaign to highlight its own position on the features in the South China Sea. As scholar Taylor Fravel and others suggest, the US should also conduct freedom of navigation missions within 12 nm of all features not entitled to territorial seas.
Undoubtedly, Beijing will attempt to pressure Manila to cut a deal that undermines the UN ruling. As a US treaty ally, the Philippines is a unique South China Sea claimant. The US should be willing to help Manila continue its fishing and other maritime activities and to use everything from sanctions to other measures short of war to prevent Chinese reclamation activities at the Scarborough Shoal. The ruling should be seen as an opportunity for the US to reinforce the benefits of being a US ally.
The next administration must be prepared to engage in activist diplomacy with its allies and friends to secure an agreement on how rights should be protected and territorial disputes resolved.
All of this, however, is predicated on the United States’ ability to muster the political wherewithal to reverse its steep decline in defense budgets and start the shipbuilding program it needs. Unfortunately these prerequisites looks more and more like wishful thinking.
How the US responds to the ruling has wider consequences for China and world order
China’s excessive maritime claims, based in part on its “history” of usage and administration over some of the Paracel islands, are a piece of China’s broader attempt to reassert control over the Qing dynasty’s supposed sphere of influence.
China’s (inaccurate) imperial claims cannot be allowed to stand in the South China Sea or they will gain currency elsewhere.
Indeed, China appears to be leaning more on claims that past dynasties had sovereignty over features in the “Southern Seas,” but there is very little evidence of this. China’s (inaccurate) imperial claims cannot be allowed to stand in the South China Sea or they will gain currency elsewhere. For example, China’s claim on Taiwan is grounded in the Qing dynasty’s former occupation of the island.
Imperial claims are inconsistent with a world order based on the just and prudent practices of nation-states. The US has an opportunity here to reaffirm a principle of the liberal world order that revanchist imperial claims have no merit.
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