On 12 July, the Arbitration Court at The Hague handed down so-called “judgment” on the case brought under the UN Convention on the Law of the Sea (UNCLOS) by the Philippines against China. In a pre-arranged declaration, the Court claimed to rule comprehensively against China’s claims in the South China Sea.
From the outset, China rejected the authority of the Court. When China signed up to UNCLOS in 1996, it also exercised its right under article 298 of the Convention to opt out of the arbitration process.
As an authoritative report on this issue by the US Brookings Institute pointed out, China’s legal right to do this is unchallenged, meaning that at the very least, China is correct to say that the judgment is not binding. [1]
But there is also a strong case that the court went beyond its competence in de facto ruling on issues of disputed sovereignty.
As a result, the judgment will do nothing to resolve the disputes in the South China Sea. But that was never the intention. The real aim of going to the Arbitration Court was to internationalise the dispute, justifying the involvement of the U.S. and, in particular, providing a rationale for an exponential increase in the presence of the U.S. Navy in the South China Sea.
From around 2009, with the aftermath of the world financial crisis accelerating the rate at which China was catching up to the U.S. as the world’s largest economy, the U.S. administration took a decision to ‘pivot’ U.S. foreign policy to Asia. a report for the Council on Foreign Affairs, the house think-tank of the US foreign policy establishment, entitled Revising US Grand Strategy Towards China, set out the aims of this ‘pivot’ most clearly as: ‘preserving U.S. primacy in the global system… in the face of rising Chinese power’. [2]
In embarking on this, these strategists urged that ‘Nothing would better promote the United States’ strategic future and grand strategy toward China than robust economic growth’. But this is not happening.
While the U.S. has given a central role to the Trans-Pacific Partnership (TPP) – a proposed free trade agreement between the U.S. and some Pacific Rim countries that excludes China – the reality is that China’s economy is much more dynamic and more attractive than that of the U.S. A purely economic competition with China is one that the U.S. will lose.
Therefore, in its ‘grand strategy’ against China, the U.S. has been forced to rely more and more on the military front, where it still has a huge strategic advantage over China and will have for decades to come.
The two key arenas for increased U.S. military pressure on China are the South China Sea and northeast Asia. A few days before The Hague ruling, South Korea agreed to the installation of the U.S. THAAD missile defence system, allegedly to counter North Korea, but with a range of 2000 km, it is clearly aimed at China.
In 2010, Hillary Clinton had used her attendance at an ASEAN meeting in Hanoi to declare that the South China Sea was within the U.S. sphere of ‘national interest’.[3] This was a prelude to stepping up its military presence in the Sea.
U.S. navy surveillance intensified; U.S. air sorties for close reconnaissance increased from about 260 in 2009 to over 1,200 in 2014; more than 100 U.S. planes have been stopping over each month at Clark, the former U.S. airbase in the Philippines.
In 2003 there were six visits by U.S. warships to Malaysian ports; in 2012 there were over 50. More recently, U.S. navy ships have sailed within 12 nautical miles of Chinese installations. U.S. warships and planes have also made frequent so-called ‘innocent passage’ transits through China’s territorial waters and airspace. Japan has threatened it will also send warships to ‘defend freedom of navigation’ in the Sea.
In 2012, Manila agreed the U.S. could return to its old Subic Bay naval base from which it had been kicked out in 1992. Australia agreed to a new U.S. Marine base in Darwin, within striking distance of the South China Sea.
Taking the issue of China’s claims to the Arbitration Court was a further step in militarising the disputes in the South China Sea. China described it as ‘a political provocation under the cloak of law’, inspired by the U.S. with the Philippines a willing puppet. [4]
It blew up the bilateral and ASEAN-led negotiating regime that had ensured stability in the Sea for the previous 20 years.
As Fu Ying and Wu Shicun set out in a major analysis for the US foreign policy magazine, The National Interest, in May 2016, this had allowed a ‘golden era’ in China-ASEAN relations ‘from 1991 to the end of 2010, during which bilateral cooperation flourished and trade ballooned nearly 37 times, from no more than $8bn to $300bn’. [5]
China’s GDP rose rapidly and most Southeast Asian economies expanded more than five-fold.
China’s approach to the disputes in the South China Sea was set out by Deng Xiaoping. When China eventually signed a peace treaty with Japan in 1978, Deng had said the dispute over the Senkaku/Diaoyu islands could be left for the ‘wisdom of future generations’ to find solutions which they could not.
He took the same approach to the South China Sea, saying to president Aquino of the Philippines in 1988: ‘We can set aside this issue for the time being and take the approach of pursuing joint development’ and not let ‘this issue stand in the way of China’s friendship with the Philippines and with other countries’. [6]
Led by China, this approach was largely followed by the other main parties – the Philippines, Malaysia, Brunei and Vietnam. On this basis in 2002, China and ASEAN agreed to a Code of Conduct for Parties in the South China Sea, which shelved the question of sovereignty and set in place non-binding protocols for joint seabed exploration and other activities in contested areas.
This framework of bilateral agreements and ASEAN-led protocols did not altogether prevent issues arising. There were numerous breaches of the ASEAN Code of Conduct – mainly not by China – but these were kept within bounds; the disputes over islands and reefs were in the background but ‘without spinning out of control’.[7]
But once the U.S. entered the fray arguing this historic dispute could no longer be left to those directly involved and insisting on the involvement of the big international guns – not just the U.S. itself but Japan and Europe – this framework began to crumble. Particularly when any country prepared to oppose China’s claims was rewarded with a visible show of U.S. naval power.
The use of UNCLOS to try to delegitimise China’s claims in the South China Sea is ironic, as the main role of the 1982 Convention had been to allow the atrophied old colonial empires to use their island remnants to define vast tracts of the world’s oceans as their ‘exclusive economic zones’.
Peter Nolan’s 2013 analysis of UNCLOS, Imperial Archipelagos, explained that the 1982 Convention had introduced a ‘revolutionary change in the law of the sea’ by adding to the previously defined 12 nautical miles (22 kilometres) of territorial waters, a new designation of much more extensive ‘exclusive economic zones’ (EEZ) giving rights to explore and exploit waters and seabed 200 nautical miles out from anything defined as ‘land’. [8]
It was this new designation of EEZs that added urgency and fervour to the clash between the UK and Argentina over the Falklands/Malvinas in 1982. The combined EEZ of the Falklands, South Georgia and the Sandwich Islands delivers the UK rights over 2m km2 of the South Atlantic, almost three times the EEZ of the UK itself (774,000 km2).
In the Pacific, excluding the U.S. west coast, Alaska and the Aleutian Island chain, the U.S. EEZ around its other island territories amounts to 5.8m km2. Compared to these, China’s claim in the South China Sea is tiny; moreover it is not a far-flung outpost of former empire, but its own backyard.
What is even more ironic is that while the U.S. has happily used the UNCLOS definitions to claim exclusive rights over vast areas of the Pacific Ocean and now demands China abides by the outcome in The Hague, the U.S. itself is one of a tiny handful of countries that has never ratified UNCLOS, unlike China.
However, while the claimed ruling may have gone against China, in some respects the response has simply underlined the continuing relative weakening of the U.S. position in the region. The international enthusiasm for The Hague ruling has been muted to say the least.
ASEAN failed even to agree that the ruling ‘could be useful’ and decided not to say anything; Singapore simply ‘noted’ it, as did South Korea; Vietnam did not mention the ruling but called for acceptance of international law.
The EU could only agree to note that the ruling had gone against China, while the statement from the July Asia-Europe summit in Mongolia didn’t mention it at all. Taiwan rejected it in terms as strong as Mainland China.
So the ruling may have been a blow against the perceived status of China’s claims in the Sea, it is by no means isolated.
So what will happen next? The U.S. and the Philippines will brand China an international outlaw; the U.S. will continue to ratchet up its military presence while blaming China for the militarisation of the South China Sea; and as long as China grows at 6.5 per cent annually, just by existing it will continue to undermine the U.S.’s attempts to assert its ‘leadership’ in Asia-Pacific.
Jude Woodward is a British writer, lecturer and expert on U.S. foreign policy towards China. Her forthcoming book ‘The U.S. vs China: A new Cold War?’ will be published by Manchester University Press in Spring 2017. Her blog can be found at http://newcoldwar.typepad.com/blog/. From 2009-12 she was visiting professor at Shanghai Jiao Tong University, Antai College School of Business. She regularly speaks and lectures in China. From 2000-08, she was the Mayor of London’s director for Culture and Tourism (equivalent to Deputy Mayor in China) responsible, among other things, for the offices of London in Beijing and Shanghai. She is a Vice President of the 48 Group Club. She studied Modern History at St Anne’s College, Oxford University.
Notes:
[1] Paul Gewirtz, The limits of the law in the South China Sea, East Asia Policy Paper no 8, Brookings Institute, May 2016
[2] Robert D Blackwill and Ashley J Tellis, Revising US grand strategy towards China, Council on Foreign Relations special report, April 2015
[3] Hillary R Clinton, Secretary of State, Remarks at Press Availability, Hanoi, Vietnam, July 23, 2010
[4] Foreign Ministry spokesperson Hong Lei’s regular press conference, Ministry of Foreign Affairs of the PRC, November 25, 2015
[5] Fu Ying and Wu Shicun, South China Sea: How we got to this stage, The National Interest, May 9, 2016
[6] Set aside dispute and pursue joint development, Diplomatic history, events and issues, Ministry of Foreign Affairs of PRC
[7] Fu Ying and Wu Shicun ibid
[8] Peter Nolan, Imperial Archipelagos, New Left Review, No 80, March-April 2013.